Foley v Ellis

The appeal concerned a claim brought by the appellant, one of the deceased's three children, under the *Family Provision Act 1982* (NSW) against the estate of her late mother. The estate was valued at approximately $2.8 million, with beneficiaries including the deceased's three children and two grandchildren. The appellant, who had a strained relationship with the deceased, received a one-ninth share of the residue, valued at about $165,000. The appellant contended that the primary judge erred in dismissing her claim.

The court was required to determine whether the primary judge had erred in dismissing the appellant's family provision claim and, if so, to re-exercise the discretionary power conferred by section 7 of the *Family Provision Act 1982* (NSW) to determine the appropriate provision, if any, to be made for the appellant from the estate. This involved considering the appellant's financial circumstances, her relationship with the deceased, and the overall distribution of the estate.

The Court of Appeal allowed the appeal, finding that the primary judge's factual findings regarding the appellant's earning capacity were contrary to the evidence and vitiated the exercise of his discretionary judgment. The court determined that remitting the matter for a further hearing would cause unwarranted delay and expense, and therefore proceeded to consider the questions afresh. The court found the appellant's financial position to be parlous, with expenditure significantly exceeding income and insufficient net assets to maintain her current standard of living, particularly given her health and limited capacity for remunerative work. The court also considered the evidence regarding the strained relationship between the appellant and the deceased, including the "Dachau" note and a letter dated 3 December 1997, which the primary judge had found to be grossly offensive and indicative of adverse conclusions the deceased might have drawn about the appellant's motives.

The appeal was allowed, and the orders made by the Associate Justice dismissing the appellant's claim and in relation to costs were set aside.