Burke v Burke

Case [2015] NSWCA 195


Court of Appeal


Supreme Court


New South Wales

  • Summary available
  • Amendment notes
Medium Neutral Citation: Burke v Burke [2015] NSWCA 195
Hearing dates:18 June 2015
Date of orders: 13 July 2015
Decision date: 13 July 2015
Before: Meagher JA at [1];
Ward JA at [2];
Emmett JA at [112]
Decision:

1.   Leave granted to extend the time for the filing of the appellant’s notice of appeal to 16 October 2014.
2.   Appeal dismissed with costs.

Catchwords: SUCCESSION – family provision – application for provision by estranged son – challenge to factual findings as to cause of estrangement and as to whether son attempted reconciliation – whether, absent callousness or hostility, estrangement is a determinative factor in case of significant financial need –whether reasonable members of the community would have expected deceased to have made provision for estranged son
Legislation Cited: Family Provision Act 1982 (NSW), s 7
Succession Act 2006 (NSW), ss 59, 60
Supreme Court Act 1970 (NSW), s 101(1)(a)
Cases Cited: Andrew v Andrew [2012] NSWCA 308
Bladwell v Davis [2004] NSWCA 170
Bowditch v NSW Trustee and Guardian [2012] NSWSC 275
Browne v Dunn (1893) 6 R 67 (HL)
Chapple v Wilcox [2014] NSWCA 392
Durham v Durham [2011] NSWCA 62
Foley v Ellis [2008] NSWCA 288
Ford v Simes [2009] NSWCA 351
Hampson v Hampson [2010] NSWCA 359
Hastings v Hastings [2010] NSWCA 197
House v The King [1936] HCA 40; (1936) 55 CLR 499
Hughes v National Trustees, Executors and Agency Co Australasia Ltd [1979] HCA 2; (1978 – 79) 143 CLR 134
Keep v Bourke [2012] NSWCA 64
Palmer v Dolman; Dolman v Palmer [2005] NSWCA 361
Poletti v Jones [2015]NSWCA 107
Quinn v Bryant [2011] NSWSC 1153
Slack v Rogan; Palffy v Rogan [2013] NSWSC 522
Singer v Berghouse [1994] HCA 40; (1994) 181 CLR 201
Taylor v Farrugia [2009] NSWSC 801
Underwood v Gaudron [2014] NSWSC 1055
Vigolo v Bostin [2005] HCA 11; (2005) 221 CLR 191
Texts Cited: Justinian, Novellae Constitutiones, Novel CXV, Ch 3
Category:Principal judgment
Parties: Terence John Burke (Appellant)
Alan Michael Burke (Respondent)
Representation:

Counsel:
RD Wilson SC (Appellant)
L Ellison SC with A Isaacs (Respondent)

  Solicitors:
Armstrong Legal (Appellant)
Swaab Attorneys (Respondent)
File Number(s):CA 2014/00253335
Publication restriction:Nil
 Decision under appeal 
Court or tribunal:
Supreme Court of New South Wales
Jurisdiction:
Equity, Family Provision List
Citation:
[2014] NSWSC 1015
Date of Decision:
25 July 2015
Before:
Rein J
File Number(s):
2013/184983

HEADNOTE

[This Headnote is not to be read as part of the judgment]

On 30 June 2012, Mrs Beryl Burke died aged 93. She was survived by her three adult children: the appellant (Terry), the respondent (Alan, who was the executor of her will) and Diana. By her will dated 23 June 2003, the deceased left a legacy of $100,000 to her grandson, Stephen (the sole surviving son from Terry’s first marriage) and the residuary of her estate to be divided equally between Alan and Diana. She made no…

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AGLC
Burke v Burke [2015] NSWCA 195
Case
[2015] NSWCA 195
Decision Date

CaseChat Overview and Summary

The case of *Burke v Burke* concerned an application for provision from the estate of a deceased by his estranged son. The primary dispute revolved around the extent of the estrangement between the son and the deceased, and whether the son had made genuine attempts at reconciliation. The appeal was heard in the Court of Appeal of New South Wales.

The central legal issues before the Court of Appeal were whether the primary judge had erred in their factual findings regarding the cause of the estrangement and the son's efforts to reconcile. Furthermore, the court was required to consider whether, in the absence of callousness or hostility, estrangement alone should be a determinative factor in a family provision claim, particularly where the applicant demonstrated significant financial need. The court also had to assess whether reasonable members of the community would have expected the deceased to have made provision for the estranged son.

The Court of Appeal ultimately dismissed the appeal, upholding the primary judge's decision. The court found no error in the primary judge's factual findings. It was held that while estrangement is a relevant consideration in family provision claims, it is not necessarily determinative, especially when weighed against the applicant's financial circumstances and the deceased's obligations. The court affirmed that the assessment involves a broad discretion, considering all relevant factors, including the deceased's testamentary intentions, the applicant's needs, and community expectations. The court granted leave to extend the time for the filing of the appellant's notice of appeal.

Orders

Orders of the court

1. Leave granted to extend the time for the filing of the appellant’s notice of appeal to 16 October 2014.

2. Appeal dismissed 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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