Morgan v Bohm [2013] NSWSC 145

Supreme Court New South Wales

Medium Neutral Citation: Morgan v Bohm [2013] NSWSC 145 Hearing dates: 25-26 October 2012, 1, 7 and 16 November 2012 Decision date: 12 February 2013 Jurisdiction: Equity Division Before: Macready AsJ Decision: (1)I order that the plaintiff receive a legacy out of the estate of the deceased of $225,000. (2)Subject to any submissions made within 7 days of this order, I order that the plaintiff's costs on the ordinary bases and the defendant's on the indemnity bases be paid out of the estate of the deceased and the notional estate of the deceased. (3)Interest is to run and the legacy at the rate provided for in the Probate and Administration Act 1898 from three months from today. (4)I designate as notional estate to the extent necessary to meet the payments above, the deceased's share of property jointly owned by the deceased and the defendant in Walter St, Paddington, New South Wales. (5)Reserve liberty to apply. Catchwords: SUCCESSION - family provision and maintenance - widow sole beneficiary - whether plaintiff in de facto relationship with deceased at time of death - whether factors warranting application - claim on notional estate Legislation Cited: Family Provision Act 1982 Interpretation Act 1987 Succession Act 2006 Cases Cited: Andrew v Andrew [2012] NSWCA 308 Brown v Faggoter [1998] NSWCA 44 Burnett v Public Trustee [2005] NSWSC 1293 Cameron v Hills (NSWSC, Needham J, 26 October 1989, unreported) Cetojevic v Cetojevic [2007] NSWCA 33 Churton v Christian (1988) 13 NSWLR 241 Commonwealth Bank of Australia v Munro [2011] NSWSC 128 Dilosa v Latec Finance Pty Ltd (1966) 84 WN (Pt1)(NSW) 557 Fazio v Fazio [2012] WASCA 72 Fulop Deceased, Re (1987) 8 NSWLR 679 HML v R [2008] HCA 16 Ho v Powell [2001] NSWCA 168 Hospitality Group Pty Ltd v Australian Rugby Union Ltd [2001] FCA 1040 Jones v Dunkel [1959] HCA 9; (1959) 101 CLR 298 Moore v Moore [2012] FAMCA 387 Payne v Parker (1976) 1 NSWLR 191 Romeo v Papalia [2012] NSWCA 221 RPS v R [2000] HCA 3 Singer v Berghouse [1994] HCA 40; (1994) 181 CLR 201 Smith v Samuels [1976] 12 SASR 573 Spence v Demasi (1988) 8 MVR 1 Wade v Harding (1987) 11 NSWLR 551 Texts Cited: Cross on Evidence 4th Aust ed (1991) Category: Principal judgment Parties: Plaintiff: Dee Margaret Morgan Defendant: Winifred Lorraine Bohm Representation: D Coulton (Plaintiff) J E Armfield (Defendant) George Sten & Co (Plaintiff) Butlers Will Dispute Lawyers (Defendant) File Number(s): 2011/00343731