Cowap v Cowap

[2020] NSWCA 19

Court of Appeal

Supreme Court

New South Wales

Medium Neutral Citation:	Cowap v Cowap [2020] NSWCA 19
Hearing dates:	4 December 2019
Date of orders:	19 February 2020
Decision date:	19 February 2020
Before:	Bell P at [1]; Macfarlan JA at [2]; White JA at [61]
Decision:	Appeal dismissed with costs.
Catchwords:	SUCCESSION – family provision – competing interests of disabled adult son and elderly widow – whether provision ordered in favour of son manifestly excessive – whether “adequate weight” given to widow’s claim to continue to reside in former matrimonial home – appeal dismissed
Legislation Cited:	Succession Act 2006 (NSW) Supreme Court Act 1970 (NSW)
Cases Cited:	Akins v National Australia Bank (1994) 34 NSWLR 155 Bugmy v The Queen (2013) 249 CLR 571; [2013] HCA 37 House v The King (1936) 55 CLR 499 Lowndes v The Queen (1999) 195 CLR 665 Luciano v Rosenblum (1985) 2 NSWLR 65 Majid v R [2010] NSWCCA 121 Steinmetz v Shannon [2019] NSWCA 114
Category:	Principal judgment
Parties:	Barbara Constance Cowap (Appellant) Nicholas John Cowap (Respondent)
Representation:	Counsel: M Meek SC / T Catanzariti (Appellant) A Crossland / J Treherne (Respondent)   Solicitors: Campbell & Co Lawyers (Appellant) Maksisi Lawyers (Respondent)
File Number(s):	2019/288936
Decision under appeal	Court or tribunal: Supreme Court Jurisdiction: Equity Division – Family Provision List Citation: [2019] NSWSC 1104 Date of Decision: 22 August 2019 Before: Kunc J File Number(s): 2017/387693

Judgment

1. BELL P: I agree with Macfarlan JA.

2. MACFARLAN JA: On 11 December 2015 Mr Geoffrey Cowap died aged 85. By his will, signed over three years earlier (10 August 2012), he left the whole of his estate to his wife of 57 years, Ms Barbara Cowap, the present appellant. The principal asset of the deceased’s estate is the matrimonial home at Springrange in which the appellant has resided for 32 years.

3. The respondent is aged 64 and is a child of the appellant’s first marriage. He was adopted by the deceased. There are five adult children of the marriage between the deceased and the appellant. After a four day hearing before Kunc J in the Equity Division, his Honour delivered an ex tempore judgment concluding that an order should be made under s 59 of the Succession Act 2006 (NSW) for provision out of the deceased’s estate for the respondent in the amount of $600,000. His Honour made formal orders, including as to designation of property as notional estate, on 2 October 2019.

4. The appellant appealed to this Court on a number of grounds, the principal of which was that the primary judge failed to give adequate weight to the claim of the appellant on the testator’s bounty and that the provision ordered in favour of the respondent was accordingly manifestly excessive. For the reasons that appear below, I consider that the appeal should be dismissed.

The deceased’s property

5. The deceased’s actual estate was only of nominal value but at the date of his death he held the following property (with values stated at the…