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.
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…
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.
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Details
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.