Charlesworth v Herring [2007] NSWSC 312

New South Wales Supreme Court

CITATION : Charlesworth v Herring [2007] NSWSC 312

HEARING DATE(S) : 30/03/07

JUDGMENT DATE : 11 April 2007

JUDGMENT OF : Gzell J

DECISION : Application dismissed with costs.

CATCHWORDS : SUCCESSION - Family Provision and Maintenance - Failure by testator to make sufficient provision - Testator left entirety of a relatively small estate to his defacto partner with gift over to her daughter by another marriage if she predeceased him - She did - The daughter's income barely covered her expenses and her assets were minimal - The deceased treated his defacto partner and her daughter as a surrogate family - He had no contact with his former wife and children and left them to care for themselves - The disable adult son of the deceased, whose needs were great, sought his entire estate - He had no contact with the deceased since he was 6 a period of 36 years - Whether the applicant was left by the deceased without adequate provision for proper maintenance, education and advancement in life

LEGISLATION CITED : Family Provision Act 1982 Testator's Family Maintenance Act (Qld)

Singer v Berghouse (1994) 181 CLR 201 Vigolo v Bostin (2005) 221 CLR 191 Pontifical Society for the Propagation of the Faith v Scales (1961-1962) 107 CLR 9 Gorton v Parks (1989) 17 NSWLR 1 CASES CITED : Lo Surdo v The Public Trustee [2005] NSWSC 1186 Walker v Walker, NSWSC, 17 May 1996 Palmer v Dolman; Dolman v Palmer [2005] NSWCA 361 Nichols v Hall [2006] NSWSC 1377 Golosky v Golosky, NSWCA, 5 October 1993, unreported

PARTIES : Alan John Charlesworth by his Tutor Kathryn Charlesworth - Plaintiff Natalie Jane Herring - Defendant