Barnaby v Berry - [2001] NSWCA 454

CITATION: Barnaby v Berry [2001] NSWCA 454

FILE NUMBER(S): CA 40292/01

HEARING DATE(S): 21/11/01

JUDGMENT DATE:
21 November 2001

PARTIES :

Hilda Barnaby (Appellant)
Graham Leonard Berry and Arnold Beauchamp (Respondents)

JUDGMENT OF: Mason P at 23, 31; Young CJ in Eq at 1-22; Ipp AJA at 24

LOWER COURT JURISDICTION : District Court

LOWER COURT
FILE NUMBER(S) : 9326/00

LOWER COURT
JUDICIAL OFFICER : Gibb DCJ

COUNSEL: C M Simpson (A)
R W Cameron (R)

SOLICITORS: Djekovic Hearne & Walker (A)
Graham L Berry (R)

CATCHWORDS: Succession- Family Provision- Adult daughter aged 73- Destitute- Estate $690,000 represented by family home in which only other child a son had lived with testatrix for 60 years- Trial judge dismissed claim- Appeal allowed- In addition to legacy of $10,000 and personal effects appellant given legacy of $135,000. (D)

LEGISLATION CITED: Family Provision Act 1982

DECISION: Appeal allowed.

CA 40292/01
DC 9326/00

MASON P
YOUNG CJ in EQ
IPP AJA

Wednesday 21 November 2001

BARNABY v BERRY

Judgment

1 YOUNG CJ in EQ: This is an appeal from the District Court which was hearing an application by an adult daughter for provision under the Family Provision Act 1982.

2 The testatrix died at a ripe old age, over one hundred, on 19 August 2000. She left a will and a codicil by which she appointed her solicitor and her son, who are the respondents to this appeal and the defendants to the proceedings, as her executors. She gave her granddaughter some legacies, she gave the plaintiff appellant a legacy of $10,000 and certain personal effects and jewellery and gave the balance of her property to her son, the second defendant.

3 She left a little note for the plaintiff with the personal effects which is set out at p 150 of the Grey Appeal Book which simply said “Hilda good luck, Mum”.

4 The present application was made on 20 November 2000 and came on for hearing in the District Court on 2 and 3 April 2001 and the learned judge gave a judgment which presumably she considered overnight on the next day, 4 April 2001. She essentially dismissed the appellant’s claim and made no order as to costs. How she reached this result I will have to consider in a little more detail shortly.

5 The estate consisted of about $690,000, the principal asset being real estate at 32 Ingham Avenue, Five Dock which was valued at $675,000. That was property in which the testatrix and her son had lived for very many years.

6 The parties do not seem to have kept to the rules which required the judge to be informed as to the net position of the estate and the costs that would need to be deducted, but at the date of trial it was thought from what appears in the appeal papers that if the estate was to bear the cost of both sides, the net estate was about $640,000.

7 The plaintiff suggested to the judge that…

Grounds of appeal

[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.

Continue reading Barnaby v Berry

Details

AGLC: Barnaby v Berry [2001] NSWCA 454
Case: [2001] NSWCA 454
Decision Date: 21 November 2001

CaseChat Overview and Summary

In *Barnaby v Berry*, an appeal was heard by the Court of Appeal of New South Wales concerning a claim for provision from the estate of a deceased testatrix. The appellant, an adult daughter aged 73, claimed she was left without adequate provision for her maintenance, education, and advancement in life. The respondent was the son of the testatrix, who had resided with her in the family home for 60 years. The estate was valued at approximately $690,000, primarily comprising the family home.

The central legal issue before the Court of Appeal was whether the provision made for the appellant in the testatrix's will was adequate, or if further provision should be made from the estate under the relevant family provision legislation. The trial judge had previously dismissed the appellant's claim.

The Court of Appeal considered the appellant's age and destitute circumstances, contrasting them with the substantial benefit the respondent received by continuing to reside in the family home, which constituted the bulk of the estate. The Court found that the provision made for the appellant, a legacy of $10,000 and personal effects, was insufficient to meet her needs. The legal principles applied focused on the court's power to make provision for eligible persons who demonstrate a need for maintenance, education, or advancement, taking into account all relevant circumstances including the applicant's age, financial resources, and the size and nature of the estate.

The appeal was allowed. In addition to the initial legacy and personal effects, the appellant was awarded a further legacy of $135,000 from the estate.

Orders

Orders of the court

Appeal allowed.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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CITATION:	Barnaby v Berry [2001] NSWCA 454
FILE NUMBER(S):	CA 40292/01
HEARING DATE(S):	21/11/01
JUDGMENT DATE:	21 November 2001
PARTIES :	Hilda Barnaby (Appellant) Graham Leonard Berry and Arnold Beauchamp (Respondents)
JUDGMENT OF:	Mason P at 23, 31; Young CJ in Eq at 1-22; Ipp AJA at 24

LOWER COURT JURISDICTION :	District Court
LOWER COURT FILE NUMBER(S) :	9326/00
LOWER COURT JUDICIAL OFFICER :	Gibb DCJ

COUNSEL:	C M Simpson (A) R W Cameron (R)
SOLICITORS:	Djekovic Hearne & Walker (A) Graham L Berry (R)
CATCHWORDS:	Succession- Family Provision- Adult daughter aged 73- Destitute- Estate $690,000 represented by family home in which only other child a son had lived with testatrix for 60 years- Trial judge dismissed claim- Appeal allowed- In addition to legacy of $10,000 and personal effects appellant given legacy of $135,000. (D)
LEGISLATION CITED:	Family Provision Act 1982
DECISION:	Appeal allowed.