Hastings v Hastings

Case [2010] NSWCA 197



New South Wales


Court of Appeal


CITATION: HASTINGS v HASTINGS [2010] NSWCA 197
This decision has been amended. Please see the end of the judgment for a list of the amendments.
HEARING DATE(S): 17 June 2010
 
JUDGMENT DATE: 

12 August 2010
JUDGMENT OF: McColl JA at 1; Basten JA at 2; Handley AJA at 42
DECISION: (1) Appeal dismissed.
(2) Appellant to pay the respondent's costs of the appeal other than those of the respondent’s application for security for costs determined by Macfarlan JA on 22 September 2009.
CATCHWORDS: APPEAL – civil – whether provision "ought" be made from the deceased's estate for "maintenance, education or advancement in life" for adult, able-bodied children – Family Provision Act 1982 (NSW) ss 7, 9 - APPEAL – civil – whether there is a moral or natural obligation to provide for adult, able-bodied children, sufficient to deprive parent of the unfetted right of testamentary disposition – ss 7, 9 - STATUTORY INTERPRETATION – principles – appellate review principles apply in relation to the test of adequacy of provision - WORDS AND PHRASES – "proper", "adequate" – Family Provision Act 1982 (NSW), s 9
LEGISLATION CITED: Family Provision Act 1982 (NSW), ss 6, 7, 9
Succession Act 2006 (NSW), Ch 3, Sch 1, Pt 3, cl 11
Succession Amendment (Family Provision) Act 2008 (NSW), s 5
Testator’s Family Maintenance Act 1916 (NSW)
CATEGORY: Principal judgment
CASES CITED: Bosch v Perpetual Trustee Co [1938] AC 463
Clifford v Mayr [2010] NSWCA 6
Goodman v Windeyer [1980] HCA 31; 144 CLR 490
House v The King [1936] HCA 40; 55 CLR 499
Hughes v National Trustees, Executors and Agency Co of Australasia Ltd [1979] HCA 2; 143 CLR 134
Hunter v Hunter (1987) 8 NSWLR 573
Minister for Immigration and Multicultural Affairs v Eshetu [1999] HCA 21; 197 CLR 611
Re Minister for Immigration and Multicultural Affairs; Ex parte Applicant S20/2002 [2003] HCA 30; 77 ALJR 1165
Singer v Berghouse [1994] HCA 40, 181 CLR 201
Stott v Cook (1960) 33 ALJR 447
Vigolo v Bostin [2005] HCA 11; 221 CLR 191
PARTIES: Phillip Hastings - Appellant
John William Hastings - Respondent
FILE NUMBER(S): CA 2009/298191
COUNSEL: C M Simpson SC/K F Morrissey – Appellant
L Ellison SC - Respondent
SOLICITORS: Coode & Cory - Appellant
Thomas McDarra & Co - Respondent
LOWER COURT JURISDICTION: Supreme Court
LOWER COURT FILE NUMBER(S): SC 2991/08
LOWER COURT JUDICIAL OFFICER: White J
LOWER COURT DATE OF DECISION: 9 December 2008
LOWER COURT MEDIUM NEUTRAL CITATION: Hastings v Hastings [2008] NSWSC 1310





                          CA 2009/298191

                          McCOLL JA
                          BASTEN JA
                          HANDLEY AJA

                          12 August 2010
Phillip HASTINGS v John William HASTINGS
Headnote

Phillip Hastings, the appellant, brought a claim under the Family Provision Act 1982 (NSW) ("the Act"), seeking provision in the amount of $140,000 from the estate of his late mother. The deceased left a will by which she appointed her other living son, John William Hastings, the respondent, as executor and sole beneficiary.…

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AGLC
Hastings v Hastings [2010] NSWCA 197
Case
[2010] NSWCA 197
Decision Date

CaseChat Overview and Summary

The appeal in *Hastings v Hastings* concerned an application for provision from a deceased's estate by adult, able-bodied children. The primary dispute revolved around whether the deceased's will, which made no provision for these children, ought to be altered under the *Family Provision Act 1982* (NSW). The matter came before the New South Wales Court of Appeal.

The Court of Appeal was required to determine two principal legal issues. Firstly, whether the statutory language of "ought" in section 7 of the *Family Provision Act 1982* (NSW) permitted provision to be made from the estate for adult, able-bodied children for their maintenance, education, or advancement in life. Secondly, the Court considered whether a moral or natural obligation to provide for such children, if it existed, was sufficient to override the deceased's unfettered right of testamentary disposition, as contemplated by sections 7 and 9 of the Act.

In its reasoning, the Court affirmed that the *Family Provision Act 1982* (NSW) does not impose a general obligation on a testator to provide for adult, able-bodied children. The Court held that the statutory test under section 9, requiring consideration of whether the provision made (or not made) was "proper" and "adequate", involves an objective assessment. It further clarified that appellate review principles apply to the test of adequacy. The Court found that the deceased had no moral or natural obligation to make provision for the adult, able-bodied children in the circumstances of the case, and therefore, the will was not to be disturbed.

The appeal was dismissed, and the appellant was ordered to pay the respondent's costs of the appeal, excluding the costs associated with the respondent's application for security for costs.

Orders

Orders of the court

(1) Appeal dismissed.

(2) Appellant to pay the respondent's costs of the appeal other than those of the respondent’s application for security for costs determined by Macfarlan JA on 22 September 2009.

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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