Dalton v Ellis

In the matter of Dalton v Ellis, the dispute centred around the validity of a deed where the father promised to name his unborn child, who was en ventre sa mere at the time, as a beneficiary in his will. The case was heard by the Supreme Court of New South Wales. The key issue before the court was whether the deed was a sham and whether there was a requisite common intention between the parties that the deed did not confer the benefits it ostensibly appeared to. Additionally, the court had to determine if the daughter, who was not a party to the deed and was born after the execution of the deed, could sue on the basis of the deed. Another significant issue was whether the man in question was the biological father of the daughter.

The court examined the nature of the testamentary contract and whether the daughter could enforce the promise made in the deed despite not being a party to it and being born after the deed was executed. The court also considered the application of the Conveyancing Act, section 36C, to determine if the daughter could be considered a third-party beneficiary. Furthermore, the court had to address whether the child was indeed the daughter of the man in question, given the blood type incompatibility between the child and the man who was married to the mother at the time of the child's birth. The court also deliberated on the nature of testamentary contracts and whether they could be voided under the Family Provision Act. Finally, the court considered the competing claims under the Family Provision Act, given the limited funds in the estate and the primary duty owed to the long-term surviving spouse.

The court found that the deed was not a sham and that there was a requisite common intention between the parties that the deed did not confer the benefits it appeared to. The court held that the daughter could sue on the deed as a third-party beneficiary, despite not being a party to the deed and being born after its execution. The court further found that the man was indeed the biological father of the daughter. The court concluded that the testamentary contract was not void under the Family Provision Act and that the daughter's claim was not subject to the operation of the Family Provision Act. The court determined that the nature of testamentary contracts meant that they could be enforceable. Finally, the court ruled that the long-term surviving spouse's claim had priority over other competing claims.

The final orders of the court included a declaration that the deed was not a sham and that the daughter was entitled to enforce the promise made in the deed. The court also ordered that the man was the biological father of the daughter. The court directed that the daughter's claim was not subject to the operation of the Family Provision Act and that the long-term surviving spouse's claim had priority.