Bladwell v Davis

Case [2004] NSWCA 170


CITATION: BLADWELL v DAVIS & ANOR [2004] NSWCA 170 revised - 10/06/2004
HEARING DATE(S): 10/05/2004
JUDGMENT DATE:
4 June 2004
JUDGMENT OF: Ipp JA at 1; Bryson JA at 5; Stein AJA at 24
DECISION: Leave to appeal against [2003] NSWSC 882 refused with costs.
CATCHWORDS: FAMILY PROVISION - adult son and daughter - leave to appeal - Master awarded provision totalling $60,000 out of residue otherwise passing under will to de facto partner of 28 years - mathematical error meant that Master estimated distributable estate at $389,000 not $313,000 - on review of factors favouring and adverse to leave to appeal, leave refused - observations by Ipp JA and Bryson JA on primacy in relation to widows in Family Provision claims.
LEGISLATION CITED: Family Provision Act 1982
CASES CITED: Cropley v Cropley [2002] NSWSC 349
Golosky v. Golosky NSWCA 5 October 1993 (unreported)
Hertzberg v. Hertzberg [2003] NSWCA 311
Luciano v. Rosenblum [1985] 2 NSWLR 65
Sayer v. Sayer [1999] NSWCA 340
Singer v. Berghouse (1994) 181 CLR 201

PARTIES :

Helen Jean Bladwell - Appellant
Leslie Ann Davis - First Respondent
Peter Robert Davis - Second Respondent
FILE NUMBER(S): CA 40920/2003
COUNSEL: R.W. Tregenza and D. Rayment - Appellant
D.L. Warren - Respondents
SOLICITORS: E.J. Harris - Appellant
Heard McEwan Lawyers - Respondents
LOWER COURTJURISDICTION: Supreme Court - Equity Division
LOWER COURT FILE NUMBER(S): 3420/2002
LOWER COURT
JUDICIAL OFFICER :
Master McLaughlin


                          40920/2003

                          IPP JA
                          BRYSON JA
                          STEIN AJA

                          FRIDAY 4 JUNE 2004
BLADWELL v. DAVIS & DAVIS
Judgment

1 IPP JA: I agree with Bryson JA, for the reasons his Honour has stated, that “it would be an error to accord to widows generally primacy over all other applicants regardless of circumstances and regardless of performance of the stages of consideration described in Singer v Berghouse (1994) 181 CLR 201 … “

2 I would add, however, that where competing factors are more or less otherwise in equilibrium, the fact that one party is the elderly widow of the testator, is permanently unable to increase her income, and is never likely to be better off financially, while the other parties are materially younger and have the capacity to earn more or otherwise improve their financial position in the future, will ordinarily result in the needs of the widow being given primacy. That is simply because, in such circumstances, the widow will have no hope of improving herself economically, whereas that would not be the position of the others. In that event, the need of the widow would be greater than that of the others.

3 I agree with Bryson JA that in the unusual circumstances of this particular case leave to appeal should not be granted. In coming to this conclusion I have weighed the following matters in the balance:


      (a) The error of $60,000 made by the Master;

      (b) The fact that both the claimant and the opponents are needy and meritorious persons, but the estate is insufficient to satisfy their needs;

      (c) The fact that…

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AGLC
Bladwell v Davis [2004] NSWCA 170
Case
[2004] NSWCA 170
Decision Date

CaseChat Overview and Summary

The parties in this matter were the adult son and daughter of the deceased, who sought provision from the deceased's estate, and the deceased's de facto partner of 28 years, who was the beneficiary under the deceased's will. The dispute concerned an application for leave to appeal a decision by a Master who had awarded provision totalling $60,000 to the son and daughter from the residue of the estate.

The primary legal issue before the Court of Appeal was whether to grant leave to appeal the Master's decision. This involved a review of the factors favouring and adverse to granting such leave, particularly in light of a mathematical error made by the Master in estimating the distributable estate. The Master had incorrectly calculated the distributable estate at $389,000, when the correct figure was $313,000, and had awarded provision totalling $60,000 from this estimated figure.

The Court of Appeal, comprising Ipp JA, Bryson JA, and Stein AJA, refused leave to appeal. While acknowledging the mathematical error, the Court considered the overall circumstances and the relevant factors for granting leave to appeal in family provision claims. The Judges made observations regarding the primacy of a widow's claim in family provision matters, suggesting that this principle was relevant to their consideration of the application.

Consequently, leave to appeal was refused, and the applicants were ordered to pay the costs of the appeal.

Orders

Orders of the court

Leave to appeal against [2003] NSWSC 882 refused with costs.

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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