Court of Appeal
Supreme Court
New South Wales
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Medium Neutral Citation: Frank v Angell [2024] NSWCA 264 Hearing dates: 27 September 2024 Date of orders: 6 November 2024 Decision date: 06 November 2024 Before: Bell CJ at [1];
Gleeson JA at [2];
Stern JA at [5].Decision: (1) To the extent necessary leave to appeal is granted.
(2) The appeal is dismissed.
(3) The appellants are to pay the respondents’ costs of the appeal.
Catchwords: SUCCESSION – Family provision – where the deceased loaned significant sums of money on favourable terms and provided rent-free accommodation to enable the appellants to study in Australia – where the deceased made provision for the appellants in his will – where the appellants sought an order for provision in the sum of $300,000 to $450,000 out of the deceased’s estate – whether the primary judge erred in determining that the appellants had not demonstrated factors warranting under s 59(1)(b) of the Succession Act 2006 (NSW) – whether the primary judge erred in determining that adequate provision for the proper maintenance, education or advancement in life of the appellants had been made by the deceased under his will pursuant to s 59(1)(c) of the Succession Act
CIVIL PROCEDURE – Appeals – appropriate standard of appellate review of a decision under ss 59(1)(b) and (c) of the Succession Act
Legislation Cited: Family Provision Act 1982 (NSW), s 9
Succession Act 2006 (NSW), ss 3(4), 57, 59, 60
Supreme Court Act 1970 (NSW), s 101
Testator’s Family Maintenance and Guardianship of Infants Act 1916 (NSW), s 3
Uniform Civil Procedure Rules 2005 (NSW), r 51.36(2)
Cases Cited: Boensch v Pascoe (2019) 268 CLR 593; [2019] HCA 49
Chapple v Wilcox (2014) 87 NSWLR 646; [2014] NSWCA 392
Churton v Christian (1988) 13 NSWLR 241; [1988] NSWCA 23
Curtis v Curtis [2024] NSWCA 136
Devries v Australian National Railways Commission (1993) 177 CLR 472; [1993] HCA 78
DL v The Queen (2018) 266 CLR 1; [2018] HCA 26
Foley v Ellis [2008] NSWCA 288
Gill v Garrett [2021] NSWCA 117
GLJ v The Trustees of the Roman Catholic Church for the Diocese of Lismore [2023] HCA 32; (2023) 97 ALJR 857
Golosky v Golosky (Court of Appeal (NSW), 5 October 1993, unrep)
House v The King (1936) 55 CLR 499; [1936] HCA 40
J and E Vella Pty Ltd v Hobson [2023] NSWCA 234
Lodin v Lodin [2017] NSWCA 327
Minister for Immigration and Border Protection v SZVFW (2018) 264 CLR 541; [2018] HCA 30
Mulcahy v Weldon [2002] NSWCA 206
Re Fulop Deceased; Fulop v Public Trustee; Bide v Public Trustee (1987) 8 NSWLR 679
Sassoon v Rose [2013] NSWCA 220
Singer v Berghouse (1994) 181 CLR 201; [1994] HCA 40
Steven Moore (a pseudonym) v The King [2024] HCA 30; (2024) 98 ALJR 1119
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- AGLC
- Frank v Angell [2024] NSWCA 264
- Case
- [2024] NSWCA 264
- Decision Date
CaseChat Overview and Summary
The central legal issues before the Court of Appeal were whether the primary judge had erred in finding that the appellants had not demonstrated factors warranting further provision under section 59(1)(b) of the *Succession Act 2006* (NSW), and whether the primary judge had erred in concluding that adequate provision for the appellants' proper maintenance, education, or advancement in life had already been made by the deceased in his will, pursuant to section 59(1)(c) of the Act. The Court was also required to consider the appropriate standard of appellate review for decisions made under these provisions.
The Court of Appeal affirmed the primary judge's decision, finding no error in the assessment of the evidence or the application of the law. The Court applied the principles governing family provision claims, considering the deceased's testamentary intentions, the relationship between the deceased and the appellants, and the appellants' needs and circumstances. The Court held that the primary judge had correctly determined that the provision made in the will, in conjunction with the past substantial financial support and accommodation provided by the deceased, constituted adequate provision for the appellants' proper maintenance, education, and advancement in life.
Consequently, the Court of Appeal granted leave to appeal to the extent necessary, but dismissed the appeal. The appellants were ordered to pay the respondents' costs of the appeal.
Orders
Orders of the court
(1) To the extent necessary leave to appeal is granted.
(2) The appeal is dismissed.
(3) The appellants are to pay the respondents’ costs of the appeal.
Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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