Moore v Moore

Case [2004] NSWSC 587


CITATION: Moore v Moore [2004] NSWSC 587
HEARING DATE(S): 30/06/04
JUDGMENT DATE:
30 June 2004
JURISDICTION:
Equity Division
JUDGMENT OF: Young CJ in Eq
DECISION: Plaintiffs' claim dismissed.
CATCHWORDS: PROCEDURE [566]- Costs- FPA- Limitations on party/party costs and costs out of estate considered. SUCCESSION [307]- FPA- Small estate- Spouse's benefit paramount- Insufficient to provide for adult sons with some needs.
LEGISLATION CITED: Family Provision Act 1982
Wills Probate & Administration Act 1898, s 61D
CASES CITED: Luciano v Rosenblum (1985) 2 NSWLR 65
Marshall v Carruthers [2002] NSWCA 47
Singer v Berghouse (1994) 181 CLR 201

PARTIES :

Gordon Lindsay Moore (P1)
Craig Allan Moore (P2)
Shayne Malcolm Moore (P3)
Jane Moore (D)
FILE NUMBER(S): SC 3800/02
COUNSEL: J A Trebeck (P)
J E Sexton SC (D)
SOLICITORS: Maria Mico (P)
Lee & Lyons (D)

IN THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION

YOUNG CJ in EQ

Wednesday 30 June 2004

3800/02 – MOORE v MOORE

JUDGMENT

1 HIS HONOUR: The present proceedings concern three applications made under the Family Provision Act 1982 by the three sons of the late Lindsay Gordon Moore, who died on 30 January 2001 intestate.

2 The deceased was married twice. His first marriage was to Eileen Waldon, whom he married on 30 October 1965, from whom he was divorced in 1992, and who is the mother of the three plaintiffs. The deceased was remarried in 1994, to the defendant. She was granted letters of administration of his estate on 30 October 2001.

3 The parties have agreed that the estate has a current value of $955,741, in accordance with the document I have marked MI02 and will be left with the papers. The major asset is the deceased's home at 6 Mark Street, Hunters Hill, valued at $900,000. That value is agreed by the parties as being correct.

4 The three plaintiffs are Gordon Lindsay Moore, Craig Allan Moore and Shayne Malcolm Moore. I will refer to them by their first names for ease of reference.

5 Might I say, before dealing with the circumstances of each of the plaintiffs, that whilst I have often said how poorly these Family Provision Act matters are conducted in this Court, this case is a shining exception. The way in which the case was presented, both by Mr Trebeck, on behalf of the plaintiffs, and by Mr J Sexton SC, on behalf of the defendant, was a model of how these cases should be handled. The written submissions were fully detailed, cross-referenced, concise and to the point and there was no waste of time in needless cross-examination. I was very much assisted by the professional way in which both counsel approached the matter. Accordingly, I can take the circumstances of each of the plaintiffs to a great degree from the summary in Mr Trebeck's written submissions.

6 Gordon is 38, a married man and a carpenter by trade. His taxable income is about $49,000. He has a house at Mannering Park on the Central Coast…

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Moore v Moore [2004] NSWSC 587
Case
[2004] NSWSC 587
Decision Date

CaseChat Overview and Summary

Moore v Moore is a case before the court that involves a dispute concerning the allocation of costs from a deceased estate. The parties in question are the executors of the estate of the deceased, who left a small estate, and their adult sons. The primary legal issue for the court to decide was whether the costs incurred by the executors could be offset against the estate or if they should be considered as costs out of the estate. The court was also tasked with determining if the estate was sufficient to provide for the adult sons, considering the paramount benefit of the surviving spouse.

The court examined the relevant provisions of the Family Provision Act and considered the financial circumstances of the surviving spouse and the adult sons. It was noted that the estate was relatively small, and the needs of the adult sons, while acknowledged, were not deemed sufficient to warrant a significant adjustment to the estate distribution. The court emphasised the importance of the surviving spouse's benefit in this matter and concluded that the costs incurred by the executors should be considered as costs out of the estate. This decision was based on the understanding that the estate was not of a magnitude that would allow for the provision of significant benefits to the adult sons.

Ultimately, the court ruled that the executors' costs should be paid out of the estate, given the small size of the estate and the necessity to prioritise the surviving spouse's benefit. The court found that the estate did not have the resources to adequately provide for the adult sons' needs, thus the executors' decision to limit the distribution to the surviving spouse was justified. The court's decision was grounded in the statutory framework provided by the Family Provision Act, ensuring that the estate was distributed in a manner that was fair and equitable under the circumstances.

Orders

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Background

Background to the litigation

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Evidence

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Ratio Decidendi

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