Underwood v Caulfield [2005] NSWSC 1164

New South Wales Supreme Court

Underwood v Caulfield [2005] NSWSC 1164 CITATION : This decision has been amended. Please see the end of the judgment for a list of the amendments.

HEARING DATE(S) : 25 July 2005

JUDGMENT DATE : 16 November 2005

JURISDICTION : Equity

JUDGMENT OF : Associate Justice McLaughlin at 1

DECISION : 1. I order that the Plaintiff receive a legacy in the sum of $80,000 from the estate of the late Darrell William Lyons ("the Deceased"), such legacy to be borne by the assets of the estate referred to in clause 3(b) in the will of the Deceased, and such legacy not to bear interest if paid on or before 16 December 2005, and if not so paid to bear interest at the rates prescribed for unpaid legacies pursuant to the Wills, Probate and Administration Act 1898. 2. I stand the proceedings over to a date to be fixed by arrangement with my Associate for argument as to costs.

CATCHWORDS : Succession. - Family Provision. - Claim by mother. - Whether Plaintiff is an eligible person in relation to Deceased. - Factors warranting the making of the application. - Financial and material circumstances of Plaintiff. - Absence of contact between Plaintiff and Deceased during last six years of Deceased's life. - Relevance of services performed by Plaintiff for Deceased. - Competing claims of beneficiaries. - Needs of Plaintiff. - Whether Plaintiff, who has resided in rented accommodation for past eleven years, is entitled to obtain from the estate a benefit sufficient to purchase a residence.

Family Provision Act 1982 LEGISLATION CITED : Wills, Probate and Administration Act 1898

Re Fulop Deceased (1987) 8 NSWLR 679 CASES CITED : Singer v Berghouse (1994) 181 CLR 201 Vigolo v Bostin (2005) 79 ALJR 731