Andrews v Howard

The appeal concerned the eligibility of a homosexual partner to claim provision from the estate of the deceased under the *Family Provision Act 1982* (NSW). The primary dispute revolved around whether the appellant, the deceased's homosexual partner, qualified as an "eligible person" under section 6 of the Act and, if so, whether the provision made by the deceased in his will was inadequate, or conversely, whether the award made by the primary judge was excessive. The matter came before the New South Wales Court of Appeal.

The Court of Appeal was required to determine two principal legal issues. Firstly, whether the appellant, as the deceased's homosexual partner, was a "dependent" of the deceased for the purposes of section 6 of the *Family Provision Act 1982*, thereby establishing him as an "eligible person". Secondly, if the appellant was an eligible person, the Court had to consider whether the provision made by the primary judge for the appellant from the deceased's estate was so excessive as to demonstrate an error in the exercise of the primary judge's discretion.

The Court of Appeal affirmed the primary judge's finding that the appellant was a dependent of the deceased and thus an eligible person under the Act. The Court reasoned that the definition of "dependent" in section 6 encompassed a broad range of relationships and circumstances, and that the evidence established a sufficient degree of financial and personal reliance by the appellant on the deceased to satisfy this criterion. Furthermore, the Court found no error in the primary judge's assessment of the provision to be made from the estate, concluding that the award was not demonstrably excessive and fell within the proper exercise of the judge's discretion.

The appeal was dismissed, and the appellant was ordered to pay the costs of the appeal.