Cockle v Cole [2008] NSWSC 1390

New South Wales Supreme Court

CITATION : Cockle v Cole [2008] NSWSC 1390

HEARING DATE(S) : 24 July 2008

JUDGMENT DATE : 23 December 2008

JUDGMENT OF : McLaughlin AsJ

1. I order that, in lieu of the benefits given to her by the will of the late Sidney Thomas Cockle ("the Deceased"), the Plaintiff receive a legacy in the sum of $400,000, such legacy to be borne equally by the benefits to which Phillip Sidney Cole and Jonathan Wayne Cockle are entitled under the said will, and such legacy not to bear interest if paid on or before 23 January 2009, and if not so paid to bear interest at the rates prescribed for unpaid legacies by the Probate and Administration Act 1898. DECISION : 2 I order that the costs of the Plaintiff on the party and party basis and the costs of the Defendant on the indemnity basis be paid out of the estate of the Deceased. 3. The exhibits may be returned. 4. I reserve to the parties liberty to apply

CATCHWORDS : SUCCESSION - family provision - claim by widow aged 79 - Plaintiff after marriage obtaining for 57 years was left less than one third of estate - other two thirds were left to the two children of the marriage - financial and material circumstances of Plaintiff - competing claims of other two beneficiaries - asserted extravagence and financial irresponsibility of Plaintiff - even if established, such assertions are not determinitive of whether Plaintiff has been left without adequate provision for her proper maintenance - Court should not be diverted from the clear words of the statute.

LEGISLATION CITED : Family Provision Act 1982

CATEGORY : Principal judgment

Hunter v Hunter (1987) 8 NSWLR 573 CASES CITED : Singer v Berghouse [1994] HCA 40; (1994) 181 CLR 201 Vigolo v Bostin [2005] HCA 11; (2005) 221 CLR 19