Campbell JA at [1]; Young JA at [2]; Sackville AJA at [79]
Decision:
Appeal dismissed with costs. [Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.]
Catchwords:
WILLS AND PROBATE- Family Provision Act s 9- purpose of section- factors warranting the making of provision- whether the primary judge erred in finding there were not sufficient factors by not taking into account the contributions of the appellant and the relationship between the appellant and the deceased- the principles in House v The King are the test for whether the judge erred- appellant failed to demonstrate error in the judge's reasons.
WILLS AND PROBATE- Family Provision Act s 32- the making of a s 32 statement by a testator referring to a person is not an implicit acknowledgment of a legitimate claim by that person on his or her bounty- such a statement only indicates that the testator expected the person to make a claim.
WILLS AND PROBATE- Family Provision Act- who is claimant on testator's bounty?- testator left estate to remote relatives and nothing to step daughter- step daughter asset rich but on partial pension- the protection of public funds is not a purpose of Family Provision legislation although the Court should not disregard the interest of the public in public funds- the testator's views should be respected unless they are contrary to community expectations.
[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.
[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.
[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.
Consideration
[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.
[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.
Continue reading Evans v Levy
Sign in free to access the full text
Details
AGLC
Evans v Levy [2011] NSWCA 125
Case
[2011] NSWCA 125
Decision Date
CaseChat Overview and Summary
The appeal concerned an application under the *Family Provision Act* (the Act) by an appellant, the stepdaughter of the deceased, who had been left nothing in the deceased's will. The estate was instead left to more remote relatives. The appellant, who was asset-rich but in receipt of a partial pension, sought provision from the estate. The primary judge had found that there were insufficient factors to warrant making provision for the appellant.
The legal issues before the Court of Appeal were whether the primary judge erred in failing to take into account the appellant's contributions and her relationship with the deceased when assessing whether sufficient factors warranted making provision under section 9 of the Act. The Court also considered the effect of a statement made by the testator in a section 32 statement, and the principles governing who qualifies as a claimant on a testator's bounty, particularly in light of the testator's expressed wishes and community expectations.
The Court applied the principles established in *House v The King* to determine whether the primary judge had erred in their findings. It held that a section 32 statement by a testator referring to a person did not constitute an implicit acknowledgment of a legitimate claim on their bounty, but rather indicated an expectation that such a claim might be made. While acknowledging that the protection of public funds is not a primary purpose of the Act, the Court noted that the interests of the public in public funds should not be disregarded. Ultimately, the Court found that the appellant had failed to demonstrate that the primary judge had erred in their reasoning, and that the testator's views should be respected unless they were contrary to community expectations.
The appeal was dismissed, and the appellant was ordered to pay the costs of the appeal.
Orders
Orders of the court
Appeal dismissed with costs.
[Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.]