Hastings v Hastings

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.