SUCCESSION - FAMILY PROVISION - Large estate left substantially to daughters of first marriage - Order that second wife have ownership of matrimonial home and $600,000 - Whether appealable error.
LEGISLATION CITED:
Blackford v. Salmon, unreported, 27/7/94 Elliott v. Elliott, Supreme Court of NSW, unreported, 18/5/84 Golosky & Anor. v. Golosky, NSW Court of Appeal, unreported, 5/10/93 Langtree v. Campbell, Supreme Court of NSW, unreported, 7/3/91 Singer v. Berghouse (1994) 181 CLR 201 White v. Barrow (1980) 144 CLR 443
Clio Valda Hertzberg and Robin Gai Downey - appellants Valda Rebecca Hertzberg - respondent
FILE NUMBER(S):
CA 40063/03
COUNSEL:
Mr. D. Officer QC with Mr. P. McGuire for appellants Mr. J. Whittle SC with Mr. B. Townsend for respondent
SOLICITORS:
Cropper Parkhill, Sydney for appellants Blake Dawson Waldron, Sydney for respondent
LOWER COURTJURISDICTION:
Supreme Court - Equity Division
LOWER COURT FILE NUMBER(S):
SC4141/02
LOWER COURT JUDICIAL OFFICER :
Acting Master Berecry
CA 40063/03 SC 4141/02
HODGSON JA McCOLL JA EINSTEIN J
Thursday 23 October 2003
HERTZBERG & ANOR V. HERTZBERG
Judgment
1 HODGSON JA: On 12 December 2002, Acting Master Berecry delivered judgment in Family Provision Act proceedings brought by the respondent against the appellants in respect of the estate of the respondent’s late husband Rueben Hertzberg. Orders pursuant to that judgment were made on 19 May 2003 and were relevantly as follows:
1. Pursuant to s.7 Family Provision Act 1982 and in addition to the provision made for the Plaintiff by the deceased during his lifetime, but subject to Order 5 below, the Plaintiff shall receive out of the estate of the late Reuben Hertzberg, for her own use and benefit absolutely: (a) the real property situate at and known as 10/4 Greenoaks Avenue, Darling Point, Sydney, New South Wales; (b) the items of furniture and other effects identified with the letter “V" in the Schedule attached to the letter from Blake Dawson Waldron to Cropper Parkhill dated 5 May 2003, a copy of which is attached hereto, (c) a lump sum of $600,000.00.
2. No interest is payable on the lump sum in Order 1(c) above, if it is paid within 28 days of these Orders; otherwise interest is to be paid at the rate prescribed by the Wills Probate & Administration Act, 1898 in respect of unpaid legacies from 12 February 2003 until the date of payment on any amount unpaid.
3. The Plaintiffs costs of the proceedings shall be paid out of the estate.
4. The Defendants' costs of the proceedings, calculated on an indemnity basis, shall be paid out of the estate.
5. Pursuant to s.11(1)(e) Family Provision Act 1982 the provision made for the Plaintiff in these Orders is subject to the condition that the Plaintiff undertakes to the…
Grounds of appeal
[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.
[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.
[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.
Consideration
[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.
[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.
Continue reading Hertzberg v Hertzberg
Sign in free to access the full text
Details
AGLC
Hertzberg v Hertzberg [2003] NSWCA 311
Case
[2003] NSWCA 311
Decision Date
CaseChat Overview and Summary
The Full Court of the Supreme Court of New South Wales heard an appeal concerning a family provision claim. The deceased's estate, which was substantial, had been largely bequeathed to his daughters from his first marriage. The second wife of the deceased had sought provision from the estate, and the primary judge had made an order granting her ownership of the matrimonial home and a sum of $600,000. The appeal questioned whether this order constituted an appealable error.
The central legal issue before the Full Court was whether the primary judge had erred in exercising their discretion to make the provision order in favour of the second wife. This involved an assessment of whether the provision made was inadequate, having regard to the deceased's responsibilities and the applicant's needs and circumstances, as well as the overall size and nature of the estate and the claims of other beneficiaries.
The Full Court considered the principles governing family provision claims, including the need to balance the testator's testamentary freedom with the moral duty owed to eligible persons. The Court found that the primary judge had properly considered all relevant factors, including the applicant's financial position, her contribution to the relationship, and the size of the estate. The Court concluded that the provision ordered was neither excessive nor inadequate and that no appealable error had been demonstrated.
Consequently, the appeal was dismissed, and the respondents were ordered to pay the costs of the appeal.