Clark v Public Trustee [2006] NSWSC 817

New South Wales Supreme Court

CITATION : Clark v Public Trustee [2006] NSWSC 817

HEARING DATE(S) : 1 and 2 May 2006

JUDGMENT DATE : 15 August 2006

JURISDICTION : Equity Division

JUDGMENT OF : Associate Justice McLaughlin at 1

DECISION : (1). I order that the summons be dismissed. (2). I order that the Plaintiffs 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 Frank Gillings ("the Deceased") the difference between the foregoing costs which he may recover from the Plaintiffs and the costs of the Defendant on the indemnity basis. (4). The exhibits may be returned.

CATCHWORDS : Succession. Family Provision. Claims by two adult children. Financial and material circumstances of Plaintiffs. Obligation upon applicant for provision to place before the Court as fully and as frankly as possible all available information concerning her or his financial and material circumstances. Whether each plaintiff has been left without adequate provision for her or his proper maintenance. Competing claim of chief beneficiary, who is widow of Deceased. Only significant asset of estate is matrimonial home of Deceased, to which chief beneficiary made substantial financial and personal contributions. Plaintiffs must establish their claims upon their own merits. Claims of Plaintiffs cannot be established, or enhanced, by proving, if such be the case, that chief beneficiary, had she been an applicant for provision, might have been unsuccessful in her claim.

LEGISLATION CITED : Family Provision Act 1982

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