Allsop P at [1]; Basten JA at [22]; Barrett JA at [62]
Decision:
(1)Allow the appeal and set aside the orders made in the Equity Division on 4 and 11 March 2011.
(2)In lieu thereof -
(a)order that further provision be made for the plaintiff out of the estate of Rita Melba Andrew deceased such that the plaintiff has, in lieu of the legacy of $10,000 provided for in the will of the deceased, a legacy of $60,000, with the additional $50,000 to be provided:
(i)as to $35,000 out of moneys to which Michael Robert Andrew would otherwise be entitled under the will;
(ii)as to $5,000 out of moneys to which Jennifer Annette Smith would otherwise be entitled under the will;
(iii)as to $5,000 out of moneys to which Lisa Gae Andrew would otherwise be entitled under the will; and
(iv)as to $5,000 out of moneys to which Tracey Lee Andrew would otherwise be entitled under the will;
(b)order that the defendant pay the plaintiff's costs.
(3)Order that the respondent pay the appellant's costs in this Court.
(4)Grant liberty to the respondent to seek an order from the trial judge that his costs be recoverable out of the estate of Rita Melba Andrew deceased.
(5)Grant the respondent a certificate under the Suitors' Fund Act 1951 (NSW).
[Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.]
Catchwords:
SUCCESSION - application for family provision order under Part 3 Succession Act 2006 - comparison of that legislation with former Family Provision Act - whether new legislation requires departure from approaches adopted under former legislation - testatrix with five children gives small legacy only to one daughter and makes more extensive provision for other children - long estrangement between testatrix and daughter concerned - evaluative decision to be made by the court - observations on need for order to reflect community values
[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.
[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.
[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.
Consideration
[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.
[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.
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Details
AGLC
Andrew v Andrew [2012] NSWCA 308
Case
[2012] NSWCA 308
Decision Date
CaseChat Overview and Summary
This case concerned an appeal from orders made in the Equity Division regarding an application for a family provision order under Part 3 of the *Succession Act 2006* (NSW). The applicant, a daughter of the deceased testatrix, Rita Melba Andrew, had received a small legacy of $10,000 under the will, while her four siblings received more substantial provisions. The applicant argued that this provision was inadequate, citing a long estrangement between herself and the testatrix.
The primary legal issue before the Court of Appeal was whether the provisions of the *Succession Act 2006* required a departure from the approaches previously adopted under the former *Family Provision Act*. The court was required to make an evaluative decision as to whether further provision ought to be made for the applicant from the estate, considering the testatrix's intentions and the applicant's circumstances, and whether such an order should reflect contemporary community values.
The Court of Appeal allowed the appeal, finding that the trial judge had erred in their assessment. The court reasoned that while the estrangement was a relevant factor, it did not justify the minimal provision made for the applicant, particularly in light of her needs and the overall size of the estate. The court applied the principles of family provision legislation, emphasising the need for adequate and proper provision for eligible persons, and determined that the applicant had not received such provision. The court also considered the need for any order to reflect community standards and values.
Consequently, the Court of Appeal set aside the original orders and made new orders providing further provision for the plaintiff. This involved increasing her legacy from $10,000 to $60,000, with the additional $50,000 to be drawn from the provisions made for her siblings under the will. The court also ordered that the defendant pay the plaintiff's costs in both the appeal and the original proceedings, with liberty granted for the respondent to seek an order for their costs to be recoverable out of the estate.
Orders
Orders of the court
(1)Allow the appeal and set aside the orders made in the Equity Division on 4 and 11 March 2011.
(2)In lieu thereof -
(a)order that further provision be made for the plaintiff out of the estate of Rita Melba Andrew deceased such that the plaintiff has, in lieu of the legacy of $10,000 provided for in the will of the deceased, a legacy of $60,000, with the additional $50,000 to be provided:
(i)as to $35,000 out of moneys to which Michael Robert Andrew would otherwise be entitled under the will;
(ii)as to $5,000 out of moneys to which Jennifer Annette Smith would otherwise be entitled under the will;
(iii)as to $5,000 out of moneys to which Lisa Gae Andrew would otherwise be entitled under the will; and
(iv)as to $5,000 out of moneys to which Tracey Lee Andrew would otherwise be entitled under the will;
(b)order that the defendant pay the plaintiff's costs.
(3)Order that the respondent pay the appellant's costs in this Court.
(4)Grant liberty to the respondent to seek an order from the trial judge that his costs be recoverable out of the estate of Rita Melba Andrew deceased.
(5)Grant the respondent a certificate under the Suitors' Fund Act 1951 (NSW).
[Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.]