Wilson v Public Trustee [2006] NSWSC 32

New South Wales Supreme Court

CITATION : Wilson v Public Trustee [2006] NSWSC 32

HEARING DATE(S) : 23 January 2006

JUDGMENT DATE : 8 February 2006

JURISDICTION : Equity

JUDGMENT OF : Associate Justice McLaughlin at 1

DECISION : 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 retain from the assets of the late Clifford Wilson ("the Deceased") the difference between the costs of the Defendant on the indemnity basis and the foregoing costs which he may recover from the Plaintiff. 4. The exhibits may be returned.

CATCHWORDS : Succession. - Family Provision. - Claim by former wife of Deceased. - Plaintiff and Deceased separated more than forty years before death of Deceased. - They did not divorce until almost twenty years after separation. - Plaintiff neither sought nor received any property settlement or maintenance from Deceased. - Nature and extent of subsequent contact between Plaintiff and Deceased. - Obligation upon Plaintiff to provide as fully and as frankly as possible all information concerning her financial and material circumstances. - Failure of Plaintiff to disclose a subsequent marriage and benefit received by her on death of her second husband. - Lack of frankness in evidence of Plaintiff. - Whether there are factors which warrant the making of the application. - Whether, in any event, Plaintiff has established an entitlement to an order for provision. - Competing claims of beneficiaries named in will.

LEGISLATION CITED : Family Provision Act 1982

Dijkhuijs v Barclay (1988) 13 NSWLR 639 O'Shaughnessy v Mantle (1986) 7 NSWLR 142 CASES CITED : Re Fulop Deceased (1987) 8 NSWLR 679 Singer v Berghouse (1994) 181 CLR 201 Vigolo v Bostin (2005) 79 ALJR 731