McKenzie v Lucas [2010] NSWSC 1083

New South Wales Supreme Court

CITATION : McKenzie v Lucas [2010] NSWSC 1083

HEARING DATE(S) : 15 September 2010

JUDGMENT DATE : 15 September 2010

JUDGMENT OF : Bryson AJ at 1

1.I grant leave to the plaintiff to file an amended summons joining Brian Dewing as executor of Estate Late Susan Dewing as 5th defendant. DECISION : 2.Save as aforesaid, dismiss notice of motion 3.Order that applicants pay the respondents' costs of the notice of motion.

CATCHWORDS : FAMILY PROVISION - agreement to settle claim - three defendants associated with will beneficiary claimed orders awarding provision to plaintiff and disposing of proceedings on basis of alleged agreement in correspondence between solicitors for these parties - executors (also defendants) were not parties to this correspondence and did not support the alleged agreement - consideration of lack of enforceability of agreements to settle Family Provision claims unless an order has been made under Family Provision Act section 7 - on the facts, an order should not be based on the alleged agreement because the facts underlying the offer changed when principal will beneficiary died after the plaintiff's offer was made and before acceptance - on the terms of the letters there was no formation of contract by offer and acceptance - enforcement of alleged agreement was refused.

LEGISLATION CITED : Family Provision Act 1982 section 7

CATEGORY : Consequential orders

CASES CITED : Bartlett v Coomber [2008] NSWCA 100

Katrina McKenzie (Plaintiff) Paul Lucas (1st Defendant) PARTIES : Roderick Cummings (2nd Defendant) Susanjohn Pty Ltd (3rd Defendant) Slackks Pty Ltd (4th Defendant) Brian Dewing (5th Defendant)