McDougall v Rogers; Estate of James Rogers [2006] NSWSC 484

New South Wales Supreme Court

CITATION : McDougall v Rogers; Estate of James Rogers [2006] NSWSC 484

HEARING DATE(S) : 1/5/06, 2/5/06

JUDGMENT DATE : 25 May 2006

JURISDICTION : Equity Division

JUDGMENT OF : Brereton J

DECISION : Claim dismissed. No order as to plaintiff's costs. Defendant's costs to be paid out of the estate.

CATCHWORDS : SUCCESSION – FAMILY PROVISION – claim by adult son of first marriage –estate left to widow of second marriage – plaintiff estranged from deceased following his parents' divorce and assumed name of his stepfather – whether estrangement is conduct disentitling – plaintiff able to support himself but in marginal circumstances - where plaintiff may in case of need expect support and provision from mother and stepfather – competing claim of widow - primacy of deceased's obligation to widow - where estate insufficient to provide adequately for maintenance of widow – obligation to maintain widow prevails over any obligation to advance adult son – summons dismissed – COSTS – unsuccessful claim by adult son - where claim not unreasonably brought – where adverse costs order would falsify finding that plaintiff was able to support himself – no costs order made against plaintiff.

LEGISLATION CITED : Family Law Act 1975 (Cth), s 79 Family Provision Act 1982 (NSW), ss 6, 16, 20, 33

Court v Hunt (NSWSC, Young J, 29 October 1987, unreported) Elliott v Elliott (NSWSC, Powell J, 18 May 1984, unreported; affirmed NSWCA, 24 April 1986, unreported) Golosky v Golosky (NSWCA, 5 October 1993, unreported) Goodman v Windeyer (1980) 144 CLR 490 Gorton v Parks (1989) 17 NSWLR 1 Kleinig v Neal (No. 2) [1981] 2 NSWLR 532 Luciano v Rosenblum [1985] 2 NSWLR 65 Palmer v Dolman [2005] NSWCA 361 Pontifical Society for the Propagation of the Faith v Scales (1962) 107 CLR 9 CASES CITED : Re Bodman [1972] QdR 281 Re De Feu, decd [1964] VR 420 Re Fulop (1987) 8 NSWLR 679 Re Kennedy, decd [1920] VLR 513 Re Klease [1972] QWN 44 Singer v Berghouse (1994) 181 CLR 201 Smith v Woodward (NSWSC, Macready M, 9 September 1994, unreported) Vigolo v Bostin (2005) 221 CLR 191 Walker v Walker (NSWSC, Young J, 17 May 1996, unreported) Wentworth v Wentworth (NSWCA, 3 March 1992, unreported)