Benham v Benham [2004] NSWSC 416

New South Wales Supreme Court

CITATION : Benham v Benham [2004] NSWSC 416 HEARING DATE(S) : 1, 2, 3, 4, 5, 19 March 2004 JUDGMENT DATE : 18 May 2004 JURISDICTION: Equity Division JUDGMENT OF : Master McLaughlin DECISION : (1). I order that the Plaintiff receive provision in the sum of $60,000 out of the notional estate of the late Margery Winifred Benham ("the Deceased"), and that such provision not bear interest if paid on or before 18 July 2004, and if not so paid, to bear interest at the rate prescribed for unpaid legacies by the Wills, Probate and Administration Act 1898; (2). I order that the following assets held respectively by the First Defendant and the Second Defendant be designated as notional estate of the Deceased: (a) AMP allocated annuity, (b) AMP allocated annuity; (3). I order that the costs of the Plaintiff on the party and party basis be paid by the Defendants; (4). The exhibits may be returned.

CATCHWORDS : Succession - Family Provision - Claim by adult son - Relationship between Plaintiff and Deceased - Distributions inter vivos by Deceased - Effect of such distributions was to dispose of entirety of assets of Deceased - Prescribed transactions - Notional estate - Plaintiff named as a beneficiary in last will of Deceased - Competing claims of other beneficiaries - Statements made by and attributed to Deceased - Conduct disentitling. Family Provision Act 1982 LEGISLATION CITED : Testator's Family Maintenance and Guardianship of Infants Act 1916 Wills, Probate and Administration Act 1898 Blore v Lang (1960) 104 CLR 124 CASES CITED : Hunter v Hunter (1987) 8 NSWLR 573 Singer v Berghouse (1994) 181 CLR 201 PARTIES : John Frederick Benham (Plaintiff) Richard Jenkyn Benham (Defendant) FILE NUMBER(S) : SC 1362/02 COUNSEL : M. Tzannes (Plaintiff) A. Todd (Defendant) SOLICITORS : Colin J Duff, Solicitor (Plaintiff) Brock Partners, Solicitors (Defendant)