Halton v Clayton; McGrath v Clayton [2005] NSWSC 1269

New South Wales Supreme Court

CITATION : Halton v Clayton; McGrath v Clayton [2005] NSWSC 1269

HEARING DATE(S) : 1, 2 and 3 November 2005

JUDGMENT DATE : 9 December 2005

JURISDICTION : Equity

JUDGMENT OF : Associate Justice McLaughlin at 1

DECISION : In each proceedings: 1. I order that the summons be dismissed. 2. I order that the Plaintiff pay the costs of the Defendant, such costs to be on the party and party basis. 3. I order that the Defendant be entitled to recoup from the estate of the late Joyce Ellen Clayton (also known as Mavis Clayton) ("the Deceased") the difference between the foregoing costs which he may recover from the Plaintiff and the costs of the Defendant on the indemnity basis. 4. The exhibits may be returned.

CATCHWORDS : Succession. - Family Provision. - Claims by two adult daughters. - Financial and material circumstances of Plaintiffs. - Asserted needs of Plaintiffs. - Whether each Plaintiff has been left without adequate provision for her maintenance. - Competing claim of Defendant. - Defendant was chief chosen object of testamentary beneficence of Deceased. - Statements by Deceased in her will concerning benefits given to Defendant. - Plaintiffs must establish their claims upon their own merits. - Claims of Plaintiffs cannot be established, or enhanced, by proving that Defendant, had he been an applicant for provision, might have been defeated on account of conduct disentitling.

Family Provision Act 1982 LEGISLATION CITED : Testator's Family Maintenance and Guardianship of Infants Act 1916

Blore v Lang (1960) 104 CLR 124 CASES CITED : Singer v Berghouse (1994) 181 CLR 201 Vigolo v Bostin (2005) 79 ALJR 731

Elaine Gladys Halton (Plaintiff) PARTIES : June Valerie McGrath (Plaintiff) Sydney Alfred Clayton (Defendant)