Presland v Carroll [2010] NSWSC 21

New South Wales Supreme Court

CITATION : Presland v Carroll [2010] NSWSC 21

HEARING DATE(S) : 22 October 2009

JUDGMENT DATE : 2 February 2010

JUDGMENT OF : McLaughlin AsJ

DECISION : I direct that on or before 15 February 2010 the Plaintiff lodge with my Associate (with a view to orders being made by me in Chambers) short minutes of order in the terms of the draft Orders annexed to the Short Outline of Submissions on behalf of the Defendant dated 1 October 2009, substituting in order 8 "a legacy of $60,000" for "a legacy of $23,000'", and providing for the costs of the Plaintiff on the party and party basis to be paid out of the notional estate of the Deceased, and providing for the exhibits to be returned.

CATCHWORDS : SUCCESSION - family provision - claim by elderly widower - small estate - Plaintiff left a life tenancy in house property which is not presently habitable - financial and material circumstances of Plaintiff, who suffers from senile dementia - whether Plaintiff has been left without adequate provision for his proper maintenance - competing claim of other beneficiaries - proceedings instituted one day out of time - estate has been fully distributed - order designating property as notional estate - whether there are "other special circumstances" which justify the making of such an order

LEGISLATION CITED : Family Provision Act 1982

CATEGORY : Principal judgment

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

Arthur George Presland (Plaintiff) PARTIES : Craig Carroll (First Defendant) Justin Robert Carroll (Second Defendant) Ashley Maree Carroll (Third Defendant)