Seitz v Morgans & anor [2001] NSWSC 1188

New South Wales Supreme Court

CITATION : Seitz v Morgans & anor [2001] NSWSC 1188 FILE NUMBER(S) : SC 3444/01 HEARING DATE(S) : 26, 27 November 2001 JUDGMENT DATE : 20 December 2001

Phillip Seitz (Plaintiff) PARTIES : John David Morgans (First Defendant) Sylvia Elsie Drake (Second Defendant) JUDGMENT OF : Master McLaughlin

COUNSEL : J. Needham (Plaintiff) M.S. Willmott (Defendants) SOLICITORS : Pauline Betts, Solicitor (Plaintiff) Northern Beaches Legal Service, Solicitors (Defendants) CATCHWORDS : Family provision - Claim by adult grandson - Whether an eligible person - Whether partly dependent upon testator - Factors which warrant the making of the application - Proceedings out of time - Whether Plaintiff was served with a notice of claim in earlier proceedings against the same estate - Fact that he was not served is not determinative of whether an extension of time should be allowed - Financial and material circumstances of Plaintiff - Whether Plaintiff has been left without adequate provision for his maintenance - Notional estate - After expiry of the prescribed period the only significant asset was transferred to the beneficiary entitled thereto - Whether an order should be made designating that property notional estate - Importance of not interfering with reasonable expectations in relation to property LEGISLATION CITED : Family Provision Act 1982 Fulop v Public Trustee (1987) 8 NSWLR 679 CASES CITED : Goodman v Windeyer (1980) 144 CLR 490 Hunter v Hunter (1987) 8 NSWLR 573 Singer v Berghouse (1994) 181 CLR 201 DECISION : See paragraph 88.