Frank v Angell

Case [2024] NSWCA 264

Court of Appeal


Supreme Court


New South Wales

  • Summary available
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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

Chan v Chan [2016] NSWCA 222

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

Diver v Neal [2009] NSWCA 54

DL v The Queen (2018) 266 CLR 1; [2018] HCA 26

Evans v Levy [2011] NSWCA 125

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 case of *Frank v Angell* concerned an appeal to the Court of Appeal of New South Wales regarding a family provision claim. The appellants, beneficiaries under the deceased's will, sought further provision from the estate, arguing that the provision made was inadequate for their proper maintenance, education, and advancement in life. The deceased had previously provided significant financial assistance and rent-free accommodation to the appellants to support their studies in Australia.

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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