Milewski v Holben [2014] NSWSC 388

Supreme Court New South Wales

Medium Neutral Citation: Milewski v Holben [2014] NSWSC 388 Hearing dates: 25 March 2014 Decision date: 26 March 2014 Jurisdiction: Equity Division Before: Lindsay J Decision: Orders made for: (a) an extension of time within which the plaintiff (a former wife of the deceased) might apply for family provision relief; (b) the designation of distributed property as notional estate of the deceased; (c) a legacy of $200,000 in favour of the plaintiff; and (d) costs. Catchwords: SUCCESSION - Family Provision - Application by former wife of deceased - Factors Warranting - Applicant has legitimate need for assistance - Deceased ought to have made provision for Applicant, and could have done so without injustice to Defendant - Relief granted. Legislation Cited: Family Provision Act 1982 NSW s 9(1) Succession Act, ss 57(1), 59, 59(1)(b), 57(1)(d), 59(1)(a), 59(1)(c) and 59(2), 78, 79, 82, 83, 87, 88, 89 and 90 Cases Cited: Andrew v Andrew (2012) 81 NSWLR 656 at 661 [16] and 664 [34]-[36] Churton v Christian (1988) 13 NSWLR 241) s 9(1) Dare v Furness (1997) 44 NSWLR 493 at 500C Durham v Durham (2011) 80 NSWLR 335 at 344 [39] In Re Salmon, Deceased [1981] Ch 167 at 175B Luciano v Rosenblum (1985) 2 NSWLR 65 at 69G-70 Re Fulop, Deceased (1987) 8 NSWLR 679 at 681 D-E Re Guskett [1947] DLR 212 at 214 Thomas v Pickering [2001] NSWSC 572 at [84]-[90] Warren v McKnight (1996) 40 NSWLR 390 at 394D Texts Cited: J K de Groot and B W Nickel Family Provision in Australia (LexisNexis Butterworths, Australia, Fourth Edition, 2012) at paragraphs 5.8-5.14 Category: Principal judgment Parties: Adele Judith Milewski (Plaintiff) Lisa Anne Holben (Defendant) Representation: Counsel: K Morrissey (Plaintiff) L Ellison SC (Defendant) Solicitors: Szabo & Associates (Plaintiff) Makinson d'Apice (Defendant) File Number(s): 2012/00359044