Estate Whiteway [2019] NSWSC 266

Supreme Court New South Wales

Medium Neutral Citation: Estate Whiteway [2019] NSWSC 266 Hearing dates: 12, 13 and 14 March 2019 Date of orders: 08 November 2019 Decision date: 08 November 2019 Jurisdiction: Equity - Family Provision List Before: Lindsay J Decision: 1) Dismissal of a claim by an adult daughter of the deceased by his first marriage for a declaration that the deceased estate of his second wife (his widow) was held on trust for the daughter insofar as it might have been inherited by the widow from the estate of the deceased.

2) Order for an extension of time within which the plaintiff could apply for a family provision order in relation to the deceased.

3) Order for the designation of part of the estate of the widow as notional estate of the deceased.

4) Order that provision for the plaintiff be made out of the notional estate of the deceased in the sum of $250,000 (in addition to a legacy of $100,000 for which the Will of the widow provided for the plaintiff). Catchwords: SUCCESSION — Family Provision — Claim by adult child for provision from the deceased's estate — Proceedings not commenced within time — Whether sufficient cause shown to extend time — Principles upon which relief granted

SUCCESSION — Wills and Estates ­— Notional estate — Restrictions on out of time or additional applications — Where property of the estate distributed — Whether order designating property as notional estate should be made Legislation Cited: Civil Procedure Act 2005 NSW Family Provision Act 1982 NSW Succession Act 2006 NSW Testator's Family Maintenance and Guardianship of Infants Act 1916 NSW Cases Cited: Andrew v Andrew (2012) 81 NSWLR 656 Baldry v Jackson [1976] 2 NSWLR 415 Bosch v Perpetual Trustee Co Ltd [1938] AC 463 at Pontifical Society for the Propagation of the Faith v Scales (1962) 17 CLR 9 Devereaux-Warnes v Hall (No. 3) (2007) 35 WAR 127 Durham v Durham [2011] NSWCA 62 Easterbrook v Young (1977) 136 CLR 308 Goodman v Windeyer (1980) 144 CLR 490 In re Allen [1922] NZLR 218 Jones v Dunkel (1959) 101 CLR 298 Prince v Argue [2002] NSWSC 1217 Richardson v Rearden [2006] NSWSC 1252 Sgro v Thompson [2017] NSWCA 326 Singer v Berghouse (1994) 181 CLR 201 Stern v Sekers [2010] NSWSC 59 Stone v Stone [2016] NSWSC 605 Vasconelos v Bonetig [2011] NSWSC 1029 Warren v McKnight (1996) 40 NSWLR 390 Texts Cited: - Category: Principal judgment Parties: Plaintiff: Elizabeth Helen Whiteway First Defendant: Adrian Haertsch as Executor and Trustee of the Estate of Stephne Whiteway Second Defendant: Adrian Haertsch as Executor and Trustee of the Estate of Donald Wallace Whiteway Fourth Defendant: Jane French Representation: Counsel: Plaintiff: J Mitchell First and Second Defendants: JEF Brown