Fallow v Mullins [2012] NSWSC 406

Supreme Court New South Wales

Medium Neutral Citation: Fallow v Mullins [2012] NSWSC 406 Hearing dates: 26 April 2012 Decision date: 27 April 2012 Jurisdiction: Equity Division Before: Hallen AsJ Decision: (i) Having found that the Plaintiff is an eligible person and that the provision made for her in the Will of the deceased is inadequate, order that she is to receive a lump sum of $161,000 out of the estate of the deceased. (ii) Order that no interest is to be paid on the lump sum if it is paid within 21 days of the making of these orders; otherwise, interest calculated at the rate prescribed by s 84A(3) Probate and Administration Act 1898, on unpaid legacies, is to be paid from that date until the date of payment. (iii) The Plaintiff's costs and disbursements, calculated on the ordinary basis, are to be paid out of the estate of the deceased. (iv) The Defendant's costs and disbursements, calculated on the indemnity basis, and assessed at $16,000, are to be paid out of the estate of the deceased. (v) Note that the Plaintiff's solicitors will not seek, from the Plaintiff, any amount for costs and disbursements additional to the amount recovered from the estate pursuant to the order in (iii) above. (vi) The Exhibits should be dealt with in accordance with the Uniform Civil Procedure Rules 2005. Catchwords: SUCCESSION - Plaintiff, who is a child of the deceased applies for a family provision order under Chapter 3 of the Succession Act 2006 - Defendants are the deceased's solicitor and the deceased's niece, to whom Probate of the deceased's Will was granted - No dispute about eligibility or that inadequate provision made for Plaintiff - Only issue nature and quantum of the provision that ought to be made and the burden of costs of the proceedings Legislation Cited: Family Provision Act 1982 Practice Note SC Eq 7 Succession Act 2006 Uniform Civil Procedure Rules 2005 Cases Cited: Allardice, In re, Allardice v Allardice (1909) 29 NZLR 959 Allen (Dec'd), In re; Allen v Manchester [1922] NZLR 218 Bondelmonte v Blanckensee [1989] WAR 305 Bosch v Perpetual Trustee Co Ltd [1938] AC 463 Collins v McGain [2003] NSWCA 190 Cooper v Dungan (1976) 50 ALJR 539 Crossman and v Riedel [2004] ACTSC 127 Devereaux -Warnes v Hall [No 3] [2007] WASCA 235; (2007) 35 WAR 127 Diver v Neal [2009] NSWCA 54 Edgar v Public Trustee for the Northern Territory [2011] NTSC 5 Foley v Ellis [2008] NSWCA 288 Gorton v Parks (1989) 17 NSWLR 1 Hawkins v Prestage (1989) 1 WAR 37 Keep v Bourke [2012] NSWCA 64 Kembrey v Cuskelly [2008] NSWSC 262 Kleinig v Neal (No 2) [1981] 2 NSWLR 532 Lathwell, as Executrix of the Estate of Gilbert Thorley Lathwell v Lathwell [2008] WASCA 256 MacGregor v MacGregor [2003] WASC 169 McCosker v McCosker (1957) 97 CLR 566 McGrath v Eves [2005] NSWSC 1006 McKenzie v Topp [2004] VSC 90 Marks v Marks [2003] WASCA 297 Palmer v Dolman; Dolman v Palmer [2005] NSWCA 361 Pontifical Society for the Propagation of the Faith v Scales [1962] HCA 19; (1961) 107 CLR 9 Singer v Berghouse (No 2) [1994] HCA 40; (1994) 181 CLR 201 Stern v Sekers; Sekers v Sekers [2010] NSWSC 59 Taylor v Farrugia [2009] NSWSC 801 Vigolo v Bostin [2005] HCA 11; (2005) 221 CLR 191 Walker v Walker (NSWSC, 17 May 1996, unreported) Williamson v Williamson [2011] NSWSC 228 Category: Principal judgment Parties: Helen Janet Fallow (Plaintiff) Mark Mullins (first Defendant) Julie Kay (second Defendant) Representation: Counsel: Mr L Ellison SC (Plaintiff) Mr K Morrissey (Defendants) Solicitors: Mark Mulock & Associates (Plaintiff) File Number(s): 2011/269608