Frohlich v Herborn [2012] NSWSC 338

Supreme Court New South Wales

Medium Neutral Citation: Frohlich v Herborn [2012] NSWSC 338 Hearing dates: 19 March 2012 - 23 March 2012 Decision date: 10 April 2012 Jurisdiction: Equity Division Before: Stevenson J Decision: 1.Property not held on constructive trust as to a half share as claimed by plaintiff. 2.Adequate provision for the proper maintenance and advancement in life not made for the plaintiff in the will of the deceased. Plaintiff left with 1/3 interest in the property. Further provision made under s 59 of the Succession Act out of the estate of the deceased of a 1/6 interest in remaining 2/3 of the property. Catchwords: TRUSTS - whether deceased held property on a constructive trust for plaintiff as to a half share

SUCCESSION - family provision and maintenance - application by one of six children for provision from father's estate pursuant to s 59 of the Succession Act 2006 - whether inadequate provision made for plaintiff and, if so, what provision ought to be made Legislation Cited: Succession Act 2006 Family Provision Act 1982 Cases Cited: Andrew v Andrew [2011] NSWSC 115 Ashton v Pratt (No 2) (2012) NSWSC 3 Cooper v Dungan (1976) 50 ALJR 539 Delaforce v Simpson-Cook (2010) 78 NSWLR 483 Giumelli v Giumelli (1999) 196 CLR 101 Grant v Edwards [1986] Ch 638 Green v Green (1989) 17 NSWLR 343 Hulme v Graham [2010] NSWSC 1281 Laidlaw & Anor v Kellie; Laidlaw (bht NSW Trustee & Guardian) v Rusiti & Ors [2011] NSWSC 740 Lajcarova v Todorov [2011] NSWSC 522 Maharaj v Jai Chand [1986] AC 898 Mann v Starkey [2008] NSWSC 263 Singer v Berghouse (No 2) (1994) 181 CLR 201 Taylor v Farrugia [2009] NSWSC 801 Watson v Foxman (1995) 49 NSWLR 315 Texts Cited: S Walmsley et al, Professional Liability in Australia, 2nd ed (2007) Category: Principal judgment Parties: Robert Frohlich (plaintiff) Katriona Herborn (first defendant) Timothy Herborn (second defendant) Representation: Mr J O Anderson (plaintiff) Mr M K Meek SC (defendants) GHS Legal Lawyers (plaintiff) J.P. O'Neill (defendants) File Number(s): SC 2010/261407