Gardiner v Gardiner [2012] NSWSC 269

Supreme Court New South Wales

Medium Neutral Citation: Gardiner v Gardiner [2012] NSWSC 269 Hearing dates: 14/03/12, 15/03/12 Decision date: 16 March 2012 Jurisdiction: Equity Division Before: Associate Justice Macready Decision: Parties to bring in short minutes. Catchwords: ESTATE - Succession Act 2006 - application for family provision order by son of the deceased - claim for additional provision - plaintiff's medical condition a serious concern - additional provision held in trust Legislation Cited: Family Provision Act 1982 Mental Health Act 2007 Succession Act 2006 Cases Cited: Dalton v Paull (No 2) (2007) NSWSC 803 Singer v Berghouse (1944) 181 CLR 201 Category: Principal judgment Parties: Linton Gardiner v Matthew Gavin Gardiner Representation: Ms S Hill for plaintiff Mr A Lakeman for defendant Geoff Osborne and Associates for plaintiff Taperell Rutledge for defendant File Number(s): 2011/136886

Judgment 1HIS HONOUR: This is the hearing of an application under the Succession Act 2006 in respect of the estate of the late Peter Beresford Gardiner who died on 1 May 2010. The deceased was survived by his two children who are the plaintiff and the defendant in the proceedings. He is also survived by his former wife who has been given notice of the proceedings and makes no claim.

LAST WILL OF DECEASED 2The last Will was made on 23 March 2010 and appointed the defendant Matthew as executor. The deceased gave legacies of $10,000 to a friend Richard Dunn and $100,000 to his son Linton, the plaintiff. The residue was to be shared equally between his two sons. 3This Will was made with the advice from the solicitor and the deceased knew of his imminent death. The additional provision of $100,000 in favour of his son Linton was made at his son's request.