CITATION: Mitrovic v Perpetual Trustee Co Ltd [1999] NSWSC 900 revised - 06/09/99 CURRENT JURISDICTION: Equity Division FILE NUMBER(S): 4058/98 HEARING DATE(S): 27/08/99 JUDGMENT DATE:
30 August 1999PARTIES :
Janet Mary Mitrovic v Perpetual Trustee Co Ltd - Estate of Jane Smith LavenderJUDGMENT OF: Master Macready at 1
COUNSEL : Mr R. Cameron for plaintiff
Mr P. Blackburn-Hart for defendantSOLICITORS: Lee, Hourigan & Brooks for plaintiff
Bartier Perry for defendantCATCHWORDS: Family Provision.; Application by a niece of deceased who was part of household for 6 months and partly dependent. Large estate. Applicant fails to call evidence of future requirements in support of claim. Difficulty facing court in the absence of such evidence. DECISION: Paragraph 57
- 1-
THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISIONMASTER MACREADY
MONDAY 30 AUGUST 1999
004058/98 - JANET MARY MITROVIC v PERPETUAL TRUSTEE CO LTD - ESTATE OF JANE SMITH LAVENDER
JUDGMENT
1 MASTER: This is the hearing of a case under the Family Provisions Act in relief of the estate of the late Janet Smith Lavender who died on 3 July 1997 aged 91 years. She was survived by her niece, the plaintiff. Her husband and her only child pre deceased her. 2 The will of which the defendant was granted Probate, was made on 27 July 1994. By that will, she gave to a friend, Margaret Kidson, some furniture, gave to the plaintiff a legacy of $5,000 and the North Haven Retirement Village Control Board of Management a legacy of $25,000. The balance of her Estate was divided between the Royal New South Wales Society for Deaf and Blind Children and the Salvation Army. 3 The deceased had made a number of wills over a period of time and it is useful noting the benefits that the plaintiff received under those wills. In 1997 the plaintiff received a legacy of $3,000 and some interest in income. In 1991 she received a legacy of $80,000 and an interest in income. In 1982 and 1984 she received an interest in income in $100,000 if certain events eventuated. In 1987 she also received a legacy of $10,000. 4 In 1989 she received an income interest in $50,000 and a legacy of $10,000 and in 1993, she received one half of the residue of the Estate. There was thus a substantial restructure between the 1993 will and the 1994 will in respect of which Probate was granted. 5 The Estate is a fairly large one. The net distributable amount is in the order of $857,000. There are costs in this application on the defence side of $18,957 and for the plaintiff of some $17,000. It is necessary to deal with the history of the family in order to understand the plaintiff's claim. 6 In 1904 Janet Ferguson, the mother of the plaintiff was born. Her sister, Jane Ferguson, the testator, was born in 1906 thus the plaintiff is the niece of the testator. 7 In 1923 Thomas Ferguson, the grandfather of…
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- Case
- [1999] NSWSC 900
- Decision Date
CaseChat Overview and Summary
The primary legal issue the court had to address was whether the applicant had demonstrated that the deceased had not made reasonable financial provision for her under the Family Provision Act. Given the applicant's partial dependence on the deceased and the absence of evidence of her future needs, the court had to assess the reasonableness of the financial provision made by the deceased without this critical information. The court considered the evidence provided by the applicant and the deceased's executor, but the lack of future needs evidence complicated the assessment.
The court found that the applicant had not provided sufficient evidence to substantiate her claim that the deceased had not made reasonable financial provision for her. The absence of evidence regarding her future requirements significantly hindered the court's ability to make an informed decision. Consequently, the court dismissed the applicant's claim, concluding that the deceased had indeed made reasonable financial provision for her. The decision underscores the importance of providing detailed evidence of future requirements in claims under the Family Provision Act.
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Background
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Evidence
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