Collins v McGain

Case [2003] NSWCA 190


CITATION: Collins v McGain & Anor [2003] NSWCA 190
HEARING DATE(S): 8 May 2003
JUDGMENT DATE:
16 July 2003
JUDGMENT OF: Beazley JA at 1; Hodgson JA at 2; Tobias JA at 14
DECISION: Appeal to be dismissed with costs.
CATCHWORDS: Probate - Appeal an application for order making provision for appellant out of respondent's estate on basis of need. - D
LEGISLATION CITED: Family Provision Act 1982, s7, s9, s9(3), s9(2), s9(2)(a)
CASES CITED: Singer v Berghouse (1994)
Bosch v Perpetual Trustee Company Pty Ltd (1938) AC 463
Permanent Trustee Co Limited v Fraser (1995) 36 NSWLR 24
Eggler v Mitchelmore 11 November 1992 (unreported)
House v The King (1936) 55 CLR 499
O'Loughlin v O'Loughlin 1 May 2003 (unreported)
Akkerman v Ewins 12 October 1999 (unreported)

PARTIES :

David John Collins
Beverley Ann McGain and Lloyd Raymond Mead
FILE NUMBER(S): CA 40814/02
COUNSEL: A - David Davies SC / T Hodgson
R - R Darke SC
SOLICITORS: A - Harris & Company
R - Lane & Lane
LOWER COURTJURISDICTION: Supreme Court
LOWER COURT FILE NUMBER(S): SC 2403/01
LOWER COURT
JUDICIAL OFFICER :
Berecry AM


                          CA 40814/02

                          BEAZLEY JA
                          HODGSON JA
                          TOBIAS JA

                          16 July 2003
COLLINS v McGAIN & ANOR

Judgment


1 BEAZLEY JA: I have had the advantage of reading in draft the judgments of Hodgson and Tobias JJA. I agree with Hodgson JA, that the Acting Master erred in his finding that “the plaintiff must be able to identify particular needs that have not been adequately provided for”. I otherwise agree with the reasons of Tobias JA and the orders he proposes.

2 HODGSON JA: I agree with the orders proposed by Tobias JA and, subject to what I say below, substantially with his reasons.

3 At [31] of his judgment, the Acting Master correctly stated the question posed by s.9(2) of the Family Provision Act 1982 (the Act) in circumstances where, as in this case, there was no provision in the will for the plaintiff:


          The Court must assess whether the absence of provision for a plaintiff resulted in an inadequacy in what, in all the circumstances, was the proper level of maintenance appropriate for the plaintiff having regard, amongst other things, to his financial position, the size and nature of the estate of deceased, totality of the relationship between the plaintiff and the deceased and the relationship between the deceased and other persons who have a legitimate claim upon her bounty.

4 In those circumstances, I would not have considered it necessarily an error for the Acting Master to have dismissed the claim on the basis that the appellant had not demonstrated a “need”, because “need” could be considered a shorthand expression for inadequacy in provision for proper maintenance.

5 However, the Acting Master went further, in saying that “the plaintiff must be able to identify particular needs that have not been adequately provided for”. I think that is suggestive of error, because there may be a difference between the level of maintenance provided…

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Collins v McGain [2003] NSWCA 190
Case
[2003] NSWCA 190
Decision Date

CaseChat Overview and Summary

In *Collins v McGain*, the New South Wales Court of Appeal considered an appeal against an application for an order making provision for the appellant out of the respondent's estate, based on the appellant's alleged need. The parties involved were the appellant, seeking provision from the estate, and the respondent, representing the estate.

The central legal issue before the Court of Appeal was whether the primary judge had erred in refusing to make provision for the appellant from the respondent's estate. This required the Court to assess the appellant's claim of need against the circumstances of the estate and the deceased's testamentary intentions.

The Court of Appeal ultimately dismissed the appeal. While the specific reasoning of the primary judge is not detailed in the provided text, the appellate court's decision indicates that they found no error in the refusal to make provision. The appeal was dismissed with costs awarded to the respondent.

Orders

Orders of the court

Appeal to be 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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