Neil v Jacovou [2011] NSWSC 87

Supreme Court New South Wales

Medium Neutral Citation: Neil v Jacovou [2011] NSWSC 87 Hearing dates: 15 March 2010, 16 March 2010, 17 March 2010, 9 April 2010 Decision date: 28 February 2011 Jurisdiction: Equity Division Before: Slattery J Decision: Catchwords: SUCCESSION - Family provision and maintenance - pre-nuptial agreement - mutual releases - rights under Family Provision Act - whether release of rights should be approved after death of one of parties - Family Provision Act, s 31- extent of circumstances considered on approval - HELD - inadequate explanation of release - due consideration to release not given - Family Provision Act, s 31(5)(d) - further whether adequate provision made for widow and daughter of deceased - Family Provision Act s 7 and s 9 - daughter not provided for in will - assets bequeathed to widow produce uncertain income - what is necessary for the "proper" maintenance, education and advancement in life of the widow and child of the deceased - HELD - inadequate provision made by deceased out of his estate for the proper maintenance, education and advancement in life of daughter - and inadequate provision made for advancement in life of widow - further provision made in favour of widow and daughter. TRUSTS - resulting trusts - deceased purchases property in his own name - evidence that purchase funded by trustee company not deceased - HELD - deceased holds property on resulting trust for company. Legislation Cited: Family Law Act 1975 (Cth) Family Law Amendment Bill (1999) Family Provision Act 1982 (NSW), ss 6, 7, 9, 11, 31 Land Tax Management Act (NSW) 1956 Property (Relationships) Act (NSW) 1984 s 4 Cases Cited: Anderson v Teboneras [1990] VR 527 Blore v Lang (1960) 104 CLR 124 Calverley v Green (1985) 155 CLR 242 Charles Marshall Pty Limited v Grimsley (1956) 96 CLR 353 Luciano v Rosenblum (1985) 2 NSWLR 65 Mulcahy v Weldon [2002] NSWCA 206 Napier v Public Trustee (WA) (1980) 32 ALR 53 Re Buckland (deceased) [1966] VR 404 Russell v Quinton [2000] NSWSC 322 Singer v Berghouse (No 2) (1994) 181 CLR 201 Taylor v Farrugia [2009] NSWSC 801 Tchadovitch v Tchadovitch [2010] NSWCA 316 Vigolo v Bostin (2005) 221 CLR 191 Category: Principal judgment Parties: Charli Neil by her Tutor Julie Neil Second Plaintiff- Julie Neil Defendant- Jack Jacovou Representation: Counsel: First & Second Plaintiff-D. Grieve QC; Ms D. Coulton Defendant- P. Blackburn-Hart SC; Mr P. O'Loughlin Solicitors: First & Second Plainitff- Maria Salerno, Vizzone Ruggero & Associates Defendant- Bernard Hayward, B Hayward & Co File Number(s): 2007/254974 Publication restriction: No