Blackmore v Allen

[2000] NSWCA 162

NEW SOUTH WALES COURT OF APPEAL

CITATION:     BLACKMORE v ALLEN & ANOR [2000]  NSWCA 162

FILE NUMBER(S):
40276/99

HEARING DATE(S):           13 June 2000

JUDGMENT DATE:            05/07/2000

PARTIES:
Susan Blackmore - Appellant
Steven Edward Allen and Nicole Allen - Respondents

JUDGMENT OF:      Priestley JA Sheller JA Foster AJA   

LOWER COURT JURISDICTION: Supreme Court - Equity Division

LOWER COURT FILE NUMBER(S):        4847/97

LOWER COURT JUDICIAL OFFICER:     Master Macready

COUNSEL:
L Ellison - Appellant
P Nash - Respondents

SOLICITORS:
Teece Hodgson & Ward - Appellant
Peter Ash & Associates - Respondents

CATCHWORDS:
Succession - Claim under family provision legislation by children of testator - Whether adequate provision for advancement in life - Where testator left bulk of estate to life partner - Family Provision Act 1982, ss 7,9 - NR

LEGISLATION CITED:
Family Provision Act 1982
Suitors' Fund Act 1951

DECISION:
1.  Appeal allowed
2.  Set aside Master Macready's order that each plaintiff receive a legacy of $80,000 and in lieu thereof order that each plaintiff receive a legacy of $20,000
3.  Confirm the Master's orders as to costs
4. The respondents to pay the costs of this appeal but to have a certificate under the Suitors' Fund Act 1951 if so qualified
5.  To the extent to which the appellant's costs of the appeal exceed the amount recoverable from the respondents they should be paid or retained on an indemnity basis out of the estate.

JUDGMENT:

THE SUPREME COURT
OF NEW SOUTH WALES
COURT OF APPEAL

CA 40276/99
ED 4847/97

PRIESTLEY JA
SHELLER JA
FOSTER AJA

BLACKMORE v ALLEN & ANOR

By his will the testator, after some minor legacies, left the residue of his estate to the appellant Susan Blackmore. The two respondents, who were his children from a previous marriage, made a claim out of the estate under s7 of the Family Provision Act 1982.  In the Court below, Master Macready ordered that each respondent receive a legacy of $80,000.  The appellant appealed from this decision.

Held: (by Sheller JA, Priestley JA and Foster AJA agreeing)

1. The appellant’s relationship with the testator was such that her claim on his estate was the same as the claim she would have had had she been married to him.  This was a claim of a high order not to be satisfied by an amount no more than a bare subsistence.  It was a claim which had to be met out of the estate before any claims by the respondents could be considered.  The amount awarded to each respondent was excessive and would have left the appellant without her appropriate entitlement out of the estate. 

2. Before an order could have been made in favour of a respondent, the Court had to be satisfied that that respondent had been left without adequate provision for his or her proper maintenance, education and advancement in life.  The claims in this case were sought only by way of an advancement in life.  Both respondents were young and in appropriate employment with good earning capacity.  Each had already…