Evans v Levy

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.