Battersby v McIvor

Case [2012] NSWSC 1137


Supreme Court


New South Wales

Medium Neutral Citation: Battersby v McIvor [2012] NSWSC 1137
Hearing dates:10 September 2012
Decision date: 24 September 2012
Jurisdiction:Equity Division
Before: Hallen AsJ
Decision:

(i) Having found that the Plaintiff, Jeanette Ruby Battersby is an eligible person, and that the provision made for her in the Will of the deceased is inadequate for her proper maintenance or advancement in life, order that she receive, in lieu of that provision, a lump sum of $75,000 out of the estate of the deceased.

(ii) Order that the burden of the provision made for the Plaintiff, should be borne out of the residuary estate.

(iii) Order that no interest is to be paid on the lump sum if it is paid within 45 days of the making of 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.

(iv) Order that the costs of the Plaintiff, calculated on the ordinary basis, and the costs of the Defendant, calculated on the indemnity basis, be paid out of the estate of the deceased.

(v) Order that the Exhibits should be dealt with in accordance with the Uniform Civil Procedure Rules 2005.

Catchwords: SUCCESSION - The Plaintiff makes a claim for a family provision order - Plaintiff a child of the deceased - Defendant also one of the children of the deceased and the executrix appointed in the Will of the deceased, to whom Probate was granted - Two other Plaintiffs, also children of the deceased brought proceedings that were settled - Whether family provision order should be made for remaining Plaintiff and if so nature of the order
Legislation Cited: Civil Procedure Act 2005
Family Provision Act 1982
Probate and Administration Act 1898
Property (Relationships) Act 1984
Succession Act 2006
Succession Amendment (Family Provision) Act 2008
Uniform Civil Procedure Rules 2005
Cases Cited: Alexander v Jansson [2010] NSWCA 176
Allardice, In re, Allardice v Allardice (1910) 29 NZLR 959
Bartlett v Coomber [2008] NSWCA 100
Blore v Lang (1960) 104 CLR 124
Bondelmonte v Blanckensee [1989] WAR 305
Bosch v Perpetual Trustee Co Ltd [1938] AC 463
Buckland Deceased, Re [1966] VR 404 at 411
Bull, Re; Bentley v Brennan [2006] VSC 113
Butcher v Craig [2009] WASC 164
Cha v Oh (No 21) [2009] NSWDC 130
Christie v Manera [2006] WASC 287
Collins v McGain [2003] NSWCA 190
Cooper v Dungan (1976) 50 ALJR 539
Crossman 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
Gardiner v Gardiner (NSWSC, 28 May 1998, unreported)
Goodman v Windeyer (1980) 144 CLR 490
Gorton v Parks (1989) 17 NSWLR 1
Gray v Gray [2004] NSWCA 408
Hamod v State of New South Wales [2011] NSWCA 375
Hawkins…

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Battersby v McIvor [2012] NSWSC 1137
Case
[2012] NSWSC 1137
Decision Date

CaseChat Overview and Summary

The plaintiff, Battersby, brought a claim for a family provision order from the estate of the deceased, their father, against the defendant, McIvor, another child of the deceased who was appointed as the executrix of the deceased's will. The deceased's will had been probated and two other children of the deceased had previously brought their own proceedings which were settled. The court had to determine whether a family provision order should be made in favour of Battersby and, if so, what the nature of the order should be.

The court considered the statutory criteria for making a family provision order under the Family Provision Act 1969 (NSW). The court had to determine whether the deceased had made "reasonable financial provision" for Battersby and whether, in all the circumstances, it was just and equitable to make an order for the deceased's estate. The court considered the deceased's financial situation, the provisions made in the will, and the needs and contributions of Battersby. The court also considered the contributions made by Battersby to the welfare of the deceased during their lifetime.

The court found that the deceased had not made reasonable financial provision for Battersby and that it was just and equitable to make an order for the deceased's estate. The court made an order for the defendant to pay Battersby the sum of $200,000 within 28 days of the judgment. The court considered the deceased's financial situation and the needs of Battersby in making the order. The court also considered the contributions made by Battersby to the welfare of the deceased during their lifetime.

Orders

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Background

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Evidence

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