Joyce Kathleen Burgess v Public Trustee of New South Wales [2011] NSWSC 1070

Supreme Court New South Wales

Medium Neutral Citation: Joyce Kathleen Burgess v Public Trustee of New South Wales [2011] NSWSC 1070 Hearing dates: 22 and 23 August 2011 Decision date: 23 August 2011 Jurisdiction: Equity Division Before: Brereton J Decision: Plaintiff retains equitable life estate in Dora Creek property given under will. Upon plaintiff giving notice to trustee of wish that trustee do so, trustee to sell property and apply the proceeds of sale 50% to the plaintiff beneficially and 50% to the purchase of alternative accommodation selected by the plaintiff for her use and occupation during lifetime and thereafter to fall into residue. Catchwords: SUCCESSION LAW - Family provision - Plaintiff de facto spouse of deceased - will leaves plaintiff equitable life interest and half remainder in home - obligations of testator to surviving spouse - moral obligation of testator to provide for security in home for remainder of spouse's life, capacity for spouse to change home, income sufficient for reasonable degree of comfort and fund for modest luxuries and contingencies - deceased had competing moral obligations to children from prior relationship - testator failed to permit spouse to change accommodation and fund necessary contingencies - further provision in nature of Crisp order as to half estate granted. Legislation Cited: (NSW) Family Provision Act 1982, s 9 Cases Cited: Court v Hunt (Supreme Court of New South Wales, Young J, 29 October 1987, unreported) Elliott v Elliott (Supreme Court of New South Wales, Powell J, 18 May 1984, unreported) Elliot v Elliot (Court of Appeal, Kirby P, Glass and McHugh JJA, 24 April 1986, unreported) Golosky v Golosky (Court of Appeal, 5 October 1993, unreported) Luciano v Rosenblum (1985) 2 NSWLR 65 O'Loughlin v O'Loughlin [2003] NSWCA 99 Salmon v Blackford (Court of Appeal, Sheller, Powell and Cole JJA, 18 February 1997, unreported) Category: Principal judgment Parties: Joyce Kathleen Burgess (plaintiff) Public Trustee of New South Wales (defendant) Representation: Counsel: Mr M. Condon (plaintiff) Mr J.E. Armfield (defendant) Solicitors: ERA Legal (plaintiff) New South Wales Trustee and Guardian (defendant) File Number(s): 2010/290921