Benz v Armstrong; Benz v Armstrong; Benz v Armstrong (No 2)

In the case of Benz v Armstrong, the deceased had left a will that omitted to provide for the applicant, the deceased’s daughter. The applicant sought family provision orders from the estate, contending that she had been neglected in the making of the will. The Full Court of the Family Court considered whether the orders sought by the applicant were just and equitable, and if the costs should include indemnity costs for the unreasonable refusal of a Calderbank offer. The deceased had a substantial estate and had made provisions for other family members and charities in his will. The court had to determine whether the omission of the applicant from the will was justified, and if the applicant was entitled to an order under the Family Law Act.

The court identified the central issues as whether the applicant's omission from the will was reasonable, and if the refusal of a Calderbank offer was unreasonable. The applicant argued that the deceased had a duty to provide for her and that the omission was unjust. The respondent contended that the deceased had made provision for other family members and that the applicant's needs were met by other means. The court also had to consider whether the refusal to accept a Calderbank offer, which was a settlement offer made without admitting liability, was unreasonable. The Full Court found that the deceased had not made adequate provision for the applicant and that the omission was unjust. The court also held that the refusal of the Calderbank offer was unreasonable, as it was made on reasonable terms and the applicant had a strong case.

The Full Court allowed the applicant's appeal and made orders for family provision. The court emphasised that the deceased had not made adequate provision for the applicant, despite the substantial estate. The court found that the omission was unjust and that the applicant was entitled to an order under the Family Law Act. In addition, the court ordered that indemnity costs be paid for the unreasonable refusal of the Calderbank offer. The Full Court held that the offer was reasonable and that the refusal was without merit. The court considered the applicant's strong case and the respondent's unreasonable refusal in determining the costs order.