Valda Rebecca HERTZBERG v Clio Valda HERTZBERG & Anor [2002] NSWSC 1235

Valda Rebecca HERTZBERG v Clio Valda HERTZBERG & Anor [2002] NSWSC 1235

The deceased's provision was inadequate because, despite the plaintiff's substantial assets, she had been his wife for nineteen years, had provided care and companionship including extensive care during his declining health, had moved from the United States to Australia, and faced lack of security and dependence on defendants with whom relations had completely broken down. In a large estate with no evidence of competing needs from the defendants, proper provision required transfer of the Darling Point property and a lump sum sufficient for renovations, replacement of expiring annuity income, outgoings and medical requirements.

Jurisdiction
Australia
Judgment Date
23 December 2002
Procedural Posture
Application Under S 7 of the Family Provision Act 1982 for Provision Out of a Deceased Estate / Judgment
Outcome
Further provision ordered for the plaintiff out of the deceased's estate in lieu of the provisions made under the will; further submissions directed regarding the deed and costs.
Legal Topics
['adequacy of Testamentary Provision for Widow' 'second Marriage' 'right to Reside in Matrimonial Home' 'lump Sum Provision' 'carer Contributions' 'large Estate']
['succession' 'family Provision' 'equity'] ['adequacy of Testamentary Provision for Widow' 'second Marriage' 'right to Reside in Matrimonial Home' 'lump Sum Provision' 'carer Contributions' 'large Estate']

Case Brief

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Procedural Posture

Application Under S 7 of the Family Provision Act 1982 for Provision Out of a Deceased Estate / Judgment

Legal Issues

  1. 1 ['Whether the provision made for the plaintiff by the deceased inter vivos and by will was inadequate for her proper maintenance and advancement in life at the time of the hearing.' "If provision was inadequate, what provision ought to be made out of the deceased's estate for the plaintiff." 'Whether a right to reside in the Darling Point property and medical and health expense arrangements were sufficient in light of the breakdown in relations between the plaintiff and the defendants.']

Ratio Decidendi

The deceased's provision was inadequate because, despite the plaintiff's substantial assets, she had been his wife for nineteen years, had provided care and companionship including extensive care during his declining health, had moved from the United States to Australia, and faced lack of security and dependence on defendants with whom relations had completely broken down. In a large estate with no evidence of competing needs from the defendants, proper provision required transfer of the Darling Point property and a lump sum sufficient for renovations, replacement of expiring annuity income, outgoings and medical requirements.

Court Disposition

Further provision ordered for the plaintiff out of the deceased's estate in lieu of the provisions made under the will; further submissions directed regarding the deed and costs.

Orders

  • ['The plaintiff receive, in lieu of the provisions made under the will of the deceased, the property known as 10/4 Greenoaks Avenue, Darling Point.' 'The plaintiff receive by way of lump sum payment out of the estate the sum of $600,000.00.' 'Further submissions be made in relation to the deed and giving effect to...