Harris v Harris

[2018] NSWCA 334

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 42.4
Cases 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 175
Category:	Principal judgment
Parties:	Andrew Harris (Appellant) Jennifer Kay Harris (Respondent)
Representation:	Counsel: P W Bates (Appellant) R Colquhoun (Respondent)   Solicitors: 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

1. 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]

   1. Harris v Harris [2018] NSWSC 552.

2. 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].

3. 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).…