Court of Appeal
Supreme Court
New South Wales
Medium Neutral Citation: Harris v Harris [2018] NSWCA 334 Hearing dates: 26 November 2018 Decision date: 21 December 2018 Before: Basten JA at [1];
Macfarlan JA at [22];
Simpson AJA at [30]Decision: (1) To the extent necessary, grant the appellant leave to appeal.
(2) Dismiss the appeal.
(3) Order the appellant to pay the respondent’s costs in this Court.Catchwords: SUCCESSION – family provision – deceased left estate to widow with no provision made in will for his adult son (who was the widow’s step-son) – whether primary judge erred in holding that no provision should be made under s 59 of Succession Act 2006 (NSW) in favour of son – relevance of son not having sought financial assistance from father or step-mother – discussion concerning common practice of spouses making mutual wills – whether primary judge misunderstood relationship between appellant’s income and expenses – whether primary judge’s conclusions concerning respondent’s financial needs were erroneous Legislation Cited: Civil Procedure Act 2005 (NSW), s 60
Succession Act 2006 (NSW), ss 59, 60, 76; Ch 3
Supreme Court Act 1970 (NSW), s 101(2)(r)
Uniform Civil Procedure Rules 2005 (NSW), r 42.4Cases Cited: Andrew v Andrew (2012) 81 NSWLR 656; [2012] NSWCA 308
Milillo v Konnecke [2009] NSWCA 109; (2009) 2 ASTLR 235
Nudd v Mannix [2009] NSWCA 327
Smith v Johnson [2015] NSWCA 297; (2015) 14 ASTLR 175Category: Principal judgment Parties: Andrew Harris (Appellant)
Jennifer Kay Harris (Respondent)Representation: Counsel:
Solicitors:
P W Bates (Appellant)
R Colquhoun (Respondent)
Gerard Malouf & Partners (Appellant)
John Katen (Respondent)
File Number(s): CA 2018/164514 Decision under appeal
- Court or tribunal:
- Supreme Court
- Jurisdiction:
- Equity
- Citation:
- [2018] NSWSC 552
- Date of Decision:
- 1 May 2018
- Before:
- Ward CJ in Eq
- File Number(s):
- SC 2016/307360
Judgment
-
BASTEN JA: On 15 October 2015 the testator (Hubert Estes Harris) died, leaving his estate to his widow, the respondent. On 14 October 2016 the appellant, Andrew Harris, the son of the testator, made a claim for provision under the Succession Act 2006 (NSW), Ch 3. On 1 May 2018 Ward CJ in Eq dismissed the claim for provision, ordering the parties to pay their own costs. [1]
-
The primary judge was not persuaded that inadequate provision had been made by the testator for the proper maintenance, education and advancement in life of the appellant. She stated that, had she been persuaded that the threshold criterion had been satisfied, she would have made provision by way of a very small legacy, in the order of $15,000, to enable the appellant to discharge his current loan obligations. [2]
2. Primary judgment at [114].
-
The notice of appeal was not accompanied by an affidavit providing a basis from which to conclude that there was an amount in excess of $100,000 in issue, failing which the appellant required leave to appeal pursuant to s 101(2)(r) of the Supreme Court Act 1970 (NSW).…
Continue reading Harris v Harris
Sign in free to access the full text
- AGLC
- Harris v Harris [2018] NSWCA 334
- Case
- [2018] NSWCA 334
- Decision Date
CaseChat Overview and Summary
The central legal issues before the Court of Appeal were whether the primary judge had made errors in assessing the appellant's claim for provision. Specifically, the court considered whether the primary judge had correctly evaluated the appellant's financial circumstances, including his income and expenses, and whether the judge had adequately considered the relevance of the appellant not having sought financial assistance from his father or step-mother during their lifetimes. The court also touched upon the common practice of spouses making mutual wills.
The Court of Appeal ultimately dismissed the appeal, finding no error in the primary judge's conclusions. The court affirmed that the primary judge had correctly assessed the appellant's financial position and the lack of any moral obligation on the part of the deceased to make provision for him. The court granted leave to appeal to the extent necessary and ordered the appellant to pay the respondent's costs.
Orders
Orders of the court
(1) To the extent necessary, grant the appellant leave to appeal.
(2) Dismiss the appeal.
(3) Order the appellant to pay the respondent’s costs in this Court.
Background
Background to the litigation
Full text does not contain this section.
Evidence
Evidence Before The Court
Full text does not contain this section.
Decision
Reasons for decision
Full text does not contain this section.
Ratio Decidendi
Legal Principle Established
Full text does not contain this section.