Kiem-Eather v Eather [2010] NSWSC 621

New South Wales Supreme Court

CITATION : Kiem-Eather v Eather [2010] NSWSC 621

HEARING DATE(S) : 28 May 2010

JUDGMENT DATE : 11 June 2010

JUDGMENT OF : McLaughlin AsJ

1. I order that, in lieu of the benefit given to her by clauses 3.1, 3.2 and 3.3 of the will and codicil of the late Sidney Francis Eather ("the Deceased"), the Plaintiff receive absolutely the interest of the Deceased in the Warners Bay property. 2. I order that the Plaintiff receive from the notional estate of the Deceased a legacy in the sum of $50,000, such legacy not to bear interest if paid on or before 11 July 2010, and if not so paid to bear interest at the rates prescribed for unpaid legacies by the Probate and Administration Act 1898. 3. 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 notional estate of the Deceased. 4. I make a declaration as in prayer 2A in the amended summons. DECISION : 5. I make an order designating as notional estate of the Deceased so much of each distribution of $38,133.36 made on 30 March 2009 to the said residuary beneficiaries as may be necessary to meet. (a) the foregoing legacy of $50,000, and (b) the foregoing costs of the Plaintiff and of the Defendant. 7. I reserve to the parties liberty to apply in respect to the implementation of order 5 and the payment from the notional estate of the aforesaid legacy and the aforesaid costs. 6. The exhibit may be returned.

CATCHWORDS : SUCCESSION - family provision - claim by widow - financial and material circumstances of Plaintiff- whether Plaintiff has been left without adequate provision of her proper maintenance - life intereset in Deceased's interest in matrimonial home is not adequate provision for a widow in situation of Plaintiff - contribution of Plaintiff towards acquisition of matrimonial home.