Diver v Neal

The appeal concerned a family provision claim brought by a stepdaughter against her deceased stepfather's estate. The primary judge had ordered provision from the estate for the stepdaughter, but the executors and residuary beneficiaries appealed this decision to the Court of Appeal of New South Wales.

The central legal issues before the Court of Appeal were whether the trial judge erred in finding that the testator had not made adequate provision for the stepdaughter's maintenance and advancement, and whether the trial judge had given sufficient reasons for this finding and appropriately weighed all relevant factors. The court also considered the appropriate costs orders, particularly in light of the repeal of the *Family Provision Act 1982* (NSW) and the application of the *Interpretation Act 1987* (NSW) to costs provisions.

The Court of Appeal allowed the appeal, setting aside the primary judge's orders. The court reasoned that the trial judge had failed to give adequate reasons for his decision and had not properly considered all the relevant factors, including the size of the estate, community standards, the nature of the stepdaughter-stepfather relationship over time, and the applicant's financial circumstances. The court also found that the trial judge had not given appropriate weight to the testator's testamentary intentions and the impact of the provision on the residuary beneficiaries. The court determined that the stepdaughter was not an "eligible person" under the Act and that the provision made by the testator was adequate.