Kennard v Sheehan [2010] NSWSC 882

Kennard v Sheehan [2010] NSWSC 882

The plaintiff, though estranged from the deceased, remained an eligible person. The deceased allowed her hurt feelings to overcome her responsibility to her only child, leaving him without adequate and proper provision for his maintenance, education and advancement in life. A legacy of $75,000, to be borne from the share of Sandra Sheehan, was a just and sufficient provision in accordance with the Act.

Jurisdiction
Australia
Judgment Date
09 August 2010
Procedural Posture
Family Provision Application / First Instance Judgment
Outcome
Application granted in part; family provision increased for plaintiff.
Legal Topics
['family Provision' 'adequate Provision for Maintenance and Advancement' 'estrangement and Moral Claim' 'distribution of Estate' 'costs in Probate Proceedings']
['succession Law' 'equity'] ['family Provision' 'adequate Provision for Maintenance and Advancement' 'estrangement and Moral Claim' 'distribution of Estate' 'costs in Probate Proceedings']

Case Brief

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Procedural Posture

Family Provision Application / First Instance Judgment

Legal Issues

  1. 1 ["Whether the provision made for the plaintiff by the deceased's will was adequate for his proper maintenance, education and advancement in life under the Family Provision Act 1982." 'How estrangement between the plaintiff and the deceased affects claims under the Act.' "What adjustment, if any, should be made to the plaintiff's share and from which part of the estate should it be derived."]

Ratio Decidendi

The plaintiff, though estranged from the deceased, remained an eligible person. The deceased allowed her hurt feelings to overcome her responsibility to her only child, leaving him without adequate and proper provision for his maintenance, education and advancement in life. A legacy of $75,000, to be borne from the share of Sandra Sheehan, was a just and sufficient provision in accordance with the Act.

Court Disposition

Application granted in part; family provision increased for plaintiff.

Orders

  • ['In lieu of the provisions in clause 3 of the will in favour of the plaintiff, he will receive a legacy of $75,000.' "The plaintiff's provision in clause 3 of the will is to pass rateably to the other beneficiaries under clause 5." "The burden of the provision is to be borne by the share of Sandra Sheehan in clause...