Alexander v Jansson

The case of *Alexander v Jansson* involved an appeal to the Court of Appeal of New South Wales concerning a family provision claim. The primary dispute centred on whether the deceased's elderly widow, Mrs. Jansson, had been made adequate provision from the estate for her proper maintenance, education, and advancement in life. The appeal also addressed procedural issues regarding the admissibility of affidavit evidence and the potential for adducing further evidence on appeal.

The legal issues before the Court of Appeal included whether the primary judge had erred in permitting Mrs. Jansson's affidavit evidence to be read despite her failure to attend for cross-examination, and whether the appellants had established grounds for leave to adduce further evidence on appeal. Additionally, the court was required to determine if Mrs. Jansson was an eligible applicant and if the provision ordered by the primary judge exceeded what was adequate for her proper maintenance, considering the significance of promises made by the deceased and the moral obligations arising from them. The court also considered whether a specific property had been correctly designated as notional estate.

The Court of Appeal held that there was no miscarriage of discretion in allowing Mrs. Jansson's affidavit evidence to be read. The court noted that the notice requiring her attendance for cross-examination was given late, and medical evidence indicated that travel would be a strain on her health. The court found that any potential cross-examination would not have altered the outcome or reduced the provision below what was ultimately substituted. Leave to adduce further evidence on appeal was refused due to a lack of sufficient explanation for not presenting it at the trial. The court found that Mrs. Jansson was partly dependent on the deceased, satisfying the eligibility criteria. However, the court determined that the fee simple granted by the primary judge exceeded the requirements of adequate provision, and even a life estate would be excessive.

The appeals were allowed in part. The Court of Appeal ordered that, in lieu of the fee simple granted by the primary judge, Mrs. Jansson was to receive a right of occupation of the Gerraween home lot, terminable upon her death or her earlier permanent cessation of residence there. The application for leave to adduce further evidence was dismissed.