John v John; John v John [2010] NSWSC 937

New South Wales Supreme Court

CITATION : John v John; John v John [2010] NSWSC 937 This decision has been amended. Please see the end of the judgment for a list of the amendments.

HEARING DATE(S) : 26 July 2010

JUDGMENT DATE : 24 August 2010

JURISDICTION : Equity

JUDGMENT OF : Ward J

2008/281624 DECISION : Application dismissed. Order costs in favour of plaintiff on party/party basis out of proceeds of sale of Woodberry property. 2008/282303 Grant leave for extension of time to bring Family Provision Act claim. Find that there has been inadequate provision. Order to be made for designation of Woodberry property as notional estate and for provision in favour of plaintiff out of proceeds of sale of Woodberry property in lieu of residuary bequest in his favour. Crisp order to be made in favour of remaining beneficiaries. Costs order to be made in favour of executor's costs on indemnity basis out of proceeds of sale of Woodberry property. Final orders to be entered after any further submissions

CATCHWORDS : SUCCESSION - family provision and maintenance - application made by one of three children for provision from mother's estate - small estate left to three children in equal shares - whether inadequate provision made for plaintiff - if so, what provision ought to be made - HELD - extension of time granted under s 16(3) of Family Provision Act 1982 for bringing action - provision inadequate - designation of property as notional estate - provision ordered for plaintiff - plaintiff should receive a legacy equal in amount to five-sixths of the net proceeds of sale of the property after there has been deducted from the sale proceeds the vendor's costs and the amount of the costs of the Family Provision Act proceedings incurred by first defendant as executor on an indemnity basis - remaining one-sixth of the proceeds should be distributed to first defendant - any property acquired with notional estate should be charged with legacies for remaining beneficiaries - PRACTICE AND PROCEDURE - whether necessary for all executors to be party to proceedings - HELD - not necessary for all executors to be joined