Hertzberg v Hertzberg

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.