Howitt as Executor of the estate of the late Margaret Norma Howitt v Bosschieter

The appeal concerned a family provision claim brought by the respondent, a grandchild of the late Margaret Norma Howitt, against the executor of her estate, the appellant. The respondent had lived with and cared for the deceased, but had also obtained $200,000 from the deceased unconscionably. The primary judge had granted further provision to the respondent from the estate. The appellant argued that this provision was unreasonable and plainly unjust. The appeal was heard by Ward P, Kirk and Free JJA in the Court of Appeal of New South Wales.

The central legal issue before the Court of Appeal was whether the primary judge erred in granting further provision to the respondent, considering the respondent's unconscionable conduct in obtaining a significant sum from the deceased. The court was required to determine if the provision made by the primary judge was appropriate and just in all the circumstances, particularly in light of the respondent's actions.

The Court of Appeal allowed the appeal, finding that the primary judge's orders for further provision were erroneous. The court reasoned that the respondent's unconscionable conduct in dissipating $200,000 obtained from the deceased was a critical factor that weighed heavily against granting further provision. The court determined that the provision made by the primary judge was not just and equitable, and that the respondent's claim should have been dismissed. Consequently, the court set aside the orders of the court below and ordered that the respondent's summons for provision be dismissed, with the respondent to pay the appellant's costs of the summons and the appeal.