Andrew v Andrew

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.