Byrne v Byrne

[2000] NSWCA 168

CITATION:	Byrne v Byrne [2000] NSWCA 168
FILE NUMBER(S):	CA 40912/99
HEARING DATE(S):	30 June 2000
JUDGMENT DATE:	30 June 2000
PARTIES :	Doreen Clementine Byrne (Appellant) Mavis Eileen Byrne (Respondent)
JUDGMENT OF:	Meagher JA at 1, 86, 93; Handley JA at 87; Heydon JA at 2

LOWER COURT JURISDICTION :	District Court
LOWER COURT FILE NUMBER(S) :	DC 2008/99
LOWER COURT JUDICIAL OFFICER :	Naughton DCJ

COUNSEL:	P R Garling SC/S L Bell (Appellant) J H H Blackman (Respondent)
SOLICITORS:	McKenzie Cox (Appellant) Budd & Piper (Respondent)
LEGISLATION CITED:	Family Provision Act 1982 Wills, Probate and Administration Act 1898
CASES CITED:	Singer v Berghouse (1994) 181 CLR 201
DECISION:	Appeal dismissed; appellant to pay the respondent's costs of the appeal

THE SUPREME COURT
OF NEW SOUTH WALES
COURT OF APPEAL

CA 40912/99
DC 2008/99

MEAGHER JA
HANDLEY JA
HEYDON JA

Friday, 30 June 2000

BYRNE v BYRNE

JUDGMENT

1    MEAGHER JA: I ask Heydon JA to give the first judgment.
2    HEYDON JA:

Background
This is an appeal from orders made by Naughton DCJ on 1 November 1999, after a trial conducted on 27-29 October 1999, that the plaintiff respondent, Mavis Eileen Byrne (whom I will call the de jure wife), should receive a legacy of $125,000 free of costs and expenses related to the litigation about and administration of her deceased husband's estate, and that interest should run on any outstanding part of that legacy from 1 March 2000 at the rate of 9.5 per cent per annum.

3    The deceased died on 25 March 1998 at the age of 83. The will was dated 9 December 1991. It appointed as executors the four appellants. The first appellant had for all or most of the period since 1949 been the de facto wife of the deceased. The will gave all the deceased's property, worth $230,812, to the de facto wife. The effect of the trial judge's orders is to leave her with about $56,000-$61,000. She has at least $220,000 worth of other assets, being her half share in the property in which she and the deceased lived for a large number of years.
4    At the commencement of the oral argument, counsel for the appellant, Mr P R Garling SC (with whom Mr S L Bell appeared), was asked in effect whether there was any position intermediate between complete dismissal of the application and the trial judge's order. His answer was in the negative and was that the appeal should be allowed and the application dismissed completely because any intermediate position would involve the sale of the property and the removal from it of the de facto wife.
5    The deceased was born on 23 April 1914. The de jure wife was born on 6 January 1922, and was thus nearly 78 at the time of the trial. The de facto wife was born on 16 August 1930, and was thus 69 at the time of the trial.
6    On 19 April 1938 the deceased married the…