McDonald v Wilkes [2010] NSWSC 548

New South Wales Supreme Court

CITATION : McDonald v Wilkes [2010] NSWSC 548

HEARING DATE(S) : 24-26 February 2010

JUDGMENT DATE : 28 May 2010

JUDGMENT OF : McLaughlin AsJ

1. I order that, in lieu of the benefit given to her by clause 5(1) of his will, the Plaintiff receive out of the estate of the late John Barry McDonald ("the Deceased") a legacy in the sum of $250,000, such legacy not to bear interest if paid on or before 28 August 2010, and if not so paid to bear interest at the rates prescribed for unpaid legacies under the Probate and Administration Act 1898. DECISION : 2. I order that the costs of the Plaintiff on the party and party basis and the costs of the Defendants on the indemnity basis (such costs of the Defendants not to exceed $50,000) be paid out of the estate of the Deceased. 3. The exhibits may be returned.

CATCHWORDS : SUCCESSION - family provision - claim by widow - financial and material circumstnaces of Plaintiff - whether Plaintiff has been left without adequate provision for her proper maintenance - right of residence is not appropriate provision for widow in situation of Plaintiff - assertion by the Defendants of matrimonial disharmony between Plaintiff and Deceased - Defendants do not assert conduct disentitling - order capping costs of Defendants

LEGISLATION CITED : Family Provision Act 1982

CATEGORY : Principal judgment

Blore v Lang (1960) 104 CLR 124 CASES CITED : Singer v Berghouse [1994] HCA 40; (1994) 181 CLR 201 Vigolo v Bostin [2005] HCA 11; (2005) 221 CLR 19

Jacqueline Jennifer McDonald (Plaintiff) PARTIES : Debbie Wilkes (First Defendant) Christine Jarrett (Second Defendant)