Doherty v Harvey [2010] NSWSC 1151

New South Wales Supreme Court

CITATION : Doherty v Harvey [2010] NSWSC 1151

HEARING DATE(S) : 27/9/2010

JUDGMENT DATE : 29 September 2010

JURISDICTION : Equity Division

JUDGMENT OF : Macready AsJ at 1

EX TEMPORE JUDGMENT DATE : 29 September 2010

1. In lieu of the provisions of clause 10 of the Will there be a bequest of: (a) the deceased's other vehicle, a Suzuki, to John Newton. (b) the deceased's contents of his home to the plaintiff. DECISION : (c) the deceased's home to the plaintiff and John Newton equally. 2. The costs of the plaintiff on the ordinary basis and the defendant on an indemnity basis are to be payable out of the estate of the deceased and are to be a charge on the deceased's home and any sale proceeds. 3. I order that the pecuniary legacy in favour of Pauline Mason of $10,000 be a charge upon the home of the deceased and any sale proceeds. 4. I order the exhibits be returned.

CATCHWORDS : Family Provision. Claim by a son for whom no real provision made. Question of nature of relationship between plaintiff and testator. Order for further provision . No matter of principle.

LEGISLATION CITED : Family Provision Act 1982 (NSW) Probate and Administration Act 1898 (NSW)

CATEGORY : Principal judgment

Bosch v Perpetual Trustee Co Ltd [1938] AC 463 Ellis v Leeder (1951) 82 CLR 645 Foley v Ellis [2008] NSWCA 288 CASES CITED : Palmer v Dolman [2005] NSWCA 361 Singer v Berghouse [1994] HCA 40; (1994) 181 CLR 201 Wentworth v Wentworth, estate of G M Wentworth (Unreported, NSWSC, Bryson J, 14 June 1991) Wheatley v Wheatley [2006] NSWCA 262