Boatswain, Justin v Boatswain; Boatswain, Alicia v Boatswain [2023] NSWSC 763

Supreme Court New South Wales

Medium Neutral Citation: Boatswain, Justin v Boatswain; Boatswain, Alicia v Boatswain [2023] NSWSC 763 Hearing dates: 16 and 17 May 2023 Date of orders: 30 June 2023 Decision date: 30 June 2023 Jurisdiction: Equity Before: Hallen J Decision: Proceedings 2022/88740 1. Notes the associated proceedings 2022/168615. 2. Orders that the proceedings be dismissed. 3. Makes no order as to costs to the intent that each party will bear his or her own costs, respectively, of the proceedings. Proceedings 2022/168615 1. Notes the associated proceedings 2022/88740. 2. Orders that the proceedings be dismissed. 3. Makes no order as to costs to the intent that each party will bear her own costs, respectively, of the proceedings. Catchwords: SUCCESSION – FAMILY PROVISION – Claims for family provision order by two, now adult, children of the deceased, in separate proceedings – Each proceeding commenced outside the time prescribed by the Act for making the application – The Defendant, in each matter, a spouse of the deceased, the stepmother of each applicant – Deceased died leaving a Will in which the Defendant the sole beneficiary – Probate of the Will not sought – No actual estate out of which any order for provision could be made – The Defendant the proper person to represent the estate and notional estate of the deceased for the purpose of the proceedings - As Defendant does not consent, whether "sufficient cause" shown for making order extending time for making each application - No sufficient explanation given by either Plaintiff for not commencing proceedings within time – Order not made - In case that conclusion wrong, consideration also given, assuming, without deciding, order for provision were to be made, whether jointly held property which passed by survivorship to the Defendant should be designated as notional estate for the purposes of making an order for provision – Whether "other special circumstances" established – Designating order not to be made with the result that there is no actual or notional estate out of which order for provision may be made – Each of the proceedings is dismissed – The Defendant does not seek any order for costs even though each Summons is dismissed. Legislation Cited: Family Provision Act 1982 (NSW) Probate and Administration Act 1898 (NSW) s 86 Succession Act 2006 (NSW) Ch 3 Uniform Civil Procedure Rules 2005 (NSW) r 28.5 Cases Cited: Alvarez v Matthews [2021] NSWSC 1551 Anderson v Hill [2017] NSWSC 1149 Andre v Perpetual Trustees WA Ltd as Executor of the Will of Barbara Helen Owen Stewart [2009] WASCA 14 Campbell v Chabert-McKay [2010] NSWSC 859 Carey v Robson (No 2) [2009] NSWSC 1199 Carr v Douglass [2016] NSWSC 854 Charnock v Handley [2011] NSWSC 1408 Choras v Farmakidis [2020] NSWSC 367 Cropley v Cropley [2002] NSWSC 349 De Winter v Johnstone (Court of Appeal (NSW), 23 August 1995, unrep) Forsyth v Sinclair (No 2) (2010) 28 VR 635; [2010] VSCA 195 Graham v Vukic [2020] NSWSC 180 Haertsch v Whiteway (2020) 102 NSWLR 386; [2020] NSWCA 133 Harkness v Harkness (No 2) [2012] NSWSC 35 Haywood v Collaroy Services Beach Club [2002] NSWSC 991 John v John; John v John [2010] NSWSC 937 Kavalee v Burbidge; Hyland v Burbidge (1998) 43 NSWLR 422 Keep v Bourke [2012] NSWCA 64 Luciano v Rosenblum (1985) 2 NSWLR 65 Madden-Smith v Madden (Estate of late Doris Linda Madden) [2012] NSWSC 146 Manning v Matsen [2015] NSWSC 1801 McKenzie v Topp; McKenzie v Topp [2004] VSC 90 Moore v Randall [2012] NSWSC 184 Page v Hull-Moody [2020] NSWSC 411 Phillips v James (2014) 85 NSWLR 619; [2014] NSWCA 4 Purnell v Tindale [2020] NSWSC 746 Shama Amnir & Ors v Fahid Bala & Ors [2023] EWHC (Ch) 1054 Smith v Woodward (Supreme Court (NSW), Macready M, 9 September 1994, unrep) Stanford v Stanford [2021] NSWSC 1469 Stone v Stone [2016] NSWSC 605 Underwood v Gaudron [2015] NSWCA 269 Vasconelos v Bonetig [2011] NSWSC 1029 Vaughan v Curran [2019] NSWSC 1562 Vella v Vella; Vella v Vella [2020] NSWSC 849 Verzar v Verzar (2014) 12 ASTLR 523; [2014] NSWCA 45 Wheatley v Wheatley [2006] NSWCA 262 Wild v Meduri & Ors; Meduri & Anor v Neal & Anor; Meduri v Meduri & Ors [2023] NSWSC 113 Category: Principal judgment Parties: 2022/88740: Justin Maurice Boatswain (Plaintiff) Sondra Eleanor Boatswain (Defendant)