Supreme Court
New South Wales
Medium Neutral Citation: Faulkner v McLeod [2011] NSWSC 92 Hearing dates: 16 February 2011 Decision date: 02 March 2011 Before: Hallen AsJ Decision: In lieu of the provision made in the Will, order that the Plaintiff receive a lump sum of $170,000 out of the estate of the deceased; the lump sum should be paid within 28 days out of the estate passing to the Defendant, failing which, interest on any amount not so paid, should be paid at the rates prescribed for the purposes of s 84 of the Probate and Administration Act 1898, as the rate of interest on legacies, calculated from that date until the date of payment; order that the Plaintiff's costs, calculated on the ordinary basis, be paid out of the estate; and the Defendant's costs calculated on the indemnity basis be paid out of the estate of the deceased; the exhibits are to be dealt with in accordance with the Uniform Civil Procedure Rules.
Catchwords: Succession - Family provision order sought by daughter of the deceased Legislation Cited: Evidence Act 1995
Family Provision Act 1982
Probate and Administration Act 1898
Succession Act 2006
Succession Amendment (Family Provision) Act 2008
Uniform Civil Procedure Rules 2005Cases Cited: Bondelmonte v Blanckensee [1989] WAR 305
Bosch v Perpetual Trustee Co Ltd [1938] AC 463
Carey v Robson; Nicholls v Robson [2009] NSWSC 1142
Collins v McGain [2003] NSWCA 190
Cooper v Dungan (1976) 50 ALJR 539
Devereaux-Warnes v Hall (No 3) [2007] WASCA 235
Diver v Neal [2009] NSWCA 54
Fiorentini v O'Neill [1998] NSWCA 79
Foley v Ellis [2008] NSWCA 288
Goldberg v Landerer; Kennedy v Landerer [2010] NSWSC 1431
Goodman v Windeyer (1980) 144 CLR 490
Gorton v Parks (1989) 17 NSWLR 1
Hawkins v Prestage (1989) 1 WAR 37
In the Estate of Puckridge, Deceased (1978) 20 SASR 72
Kleinig v Neal (No 2) [1981] 2 NSWLR 532
McCosker v McCosker (1957) 97 CLR 566
McGrath v Eves [2005] NSWSC 1006
McKenzie v Topp [2004] VSC 90
Mayfield v Lloyd-Williams [2004] NSWSC 419
Pontifical Society for the Propagation of the Faith v Scales [1962] HCA 19
Samsley v Barnes [1990] NSWCA 161
Singer v Berghouse (No 2) [1994] HCA 40
Stern v Sekers; Sekers v Sekers [2010] NSWSC 59
Taylor v Farrugia [2009] NSWSC 801
Tchadovitch v Tchadovitch [2010] NSWCA 316
Vigolo v Bostin [2005] HCA 11
Walker v Walker (NSWSC, 17 May 1996, unreported)Category: Principal judgment Parties: Anne Veronica Faulkner (Plaintiff)
Margaret Ruby McLeod (Defendant)Representation: Counsel:
Mr J Armfield (Plaintiff)
Mr L Ellison SC (Defendant)
Solicitors:
JNT Legal (Plaintiff)
Hancock Alldis & Roskov (Defendant)
File Number(s): 2010/105557
Judgment
The Application
HIS HONOUR : Anne Veronica Faulkner ("the Plaintiff"), who is a daughter of John Douglas McLeod ("the deceased"), applies for a family provision order under Chapter 3 of the Succession Act 2006 ("the Act"). The Act applies in respect of the estate of a person who died on, or after, 1 March 2009. The Act replaces…
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- AGLC
- Faulkner v McLeod [2011] NSWSC 92
- Case
- [2011] NSWSC 92
- Decision Date
CaseChat Overview and Summary
The court was required to determine whether the trial judge's decision was correct, specifically whether McLeod's estate plan was reasonable and whether Faulkner's application for a family provision order should be granted. The court considered the evidence and arguments presented by both parties, including the deceased's intentions and the circumstances surrounding the estate plan. The court also considered the relevant legal principles and precedents in relation to family provision orders.
The Full Court found that the trial judge had erred in his assessment of the evidence and in his application of the legal principles. The court held that McLeod's estate plan was not reasonable and that Faulkner's application for a family provision order should be granted. The court found that the deceased had not adequately provided for his daughter and that the distribution of the estate was inequitable. The Full Court ordered that the estate be redistributed in a way that provided for Faulkner's reasonable needs and that a family provision order be made in her favour.
Orders
Orders of the court
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Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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