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 2010JUDGMENT 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 191PARTIES: Phillip Hastings - Appellant
John William Hastings - RespondentFILE NUMBER(S): CA 2009/298191 COUNSEL: C M Simpson SC/K F Morrissey – Appellant
L Ellison SC - RespondentSOLICITORS: Coode & Cory - Appellant
Thomas McDarra & Co - RespondentLOWER 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
12 August 2010McCOLL JA
BASTEN JA
HANDLEY AJA
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.
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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