Macfarlan JA (at [1]); Barrett JA (at [6]); Tobias AJA (at [56])
Decision:
1. Appeal allowed.
2. Vary order 1 made by the court below by substituting "$175,000" for $200,000".
3. Vary order 3 made by the court below by omitting all words after "after" and substituting "5 April 2012".
4. That the respondent pay the appellants' costs of the appeal.
[Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.]
Catchwords:
SUCCESSION - application for provision under Part 3 Succession Act 2006 - testatrix with three adult children leaves whole estate to two of them equally - long estrangement between third child and testatrix - third child obtains at first instance an order giving her a legacy of roughly one-third of estate - whether primary judge correctly applied jurisdictional or "first stage" test - whether discretion miscarried at "second stage"
MACFARLAN JA:I agree with the judgment of Barrett JA and with the orders that he proposes, save that I disagree with his Honour's view that the legacy in favour of the respondent for which the primary judge provided should be reduced by only $25,000, that is from $200,000 to $175,000.
I fully concur with his Honour's observations concerning the manner in which the estrangement between the respondent and her parents came about. The parents' return to the respondent of her wedding invitation with a note saying "we do not want anything to do with you" clearly justified for many years after 1971 the respondent's failure to attempt reconciliation with her parents.…
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.
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Details
AGLC
Keep v Bourke [2012] NSWCA 64
Case
[2012] NSWCA 64
Decision Date
CaseChat Overview and Summary
The appeal in *Keep v Bourke* concerned an application for provision from the estate of a deceased testatrix, brought by one of her three adult children. The testatrix had bequeathed her entire estate equally to two of her children, leaving the third child, the respondent, with nothing. The primary judge had made an order providing the respondent with a legacy of approximately one-third of the estate. The appellants, the beneficiaries under the will, appealed this decision.
The issues before the Court of Appeal were whether the primary judge had correctly applied the jurisdictional or "first stage" test for making an order for provision, and if so, whether the discretion exercised at the "second stage" of the assessment had miscarried. The "first stage" test requires the applicant to demonstrate that they are a person for whom the deceased ought to have made provision for their proper maintenance, education and advancement in life, and that the will fails to make adequate provision. The "second stage" involves the court determining the extent of provision to be made.
The Court of Appeal found that while the primary judge had correctly identified the respondent as a person for whom the testatrix ought to have made provision, the assessment of the amount of that provision at the second stage had miscarried. The court considered the long estrangement between the testatrix and the respondent, and the relative financial circumstances of the parties. The court concluded that the provision ordered by the primary judge was excessive, having regard to the overall circumstances and the need to balance the competing claims of the beneficiaries.
Consequently, the appeal was allowed. The order made by the primary judge was varied to reduce the respondent's legacy from $200,000 to $175,000. The appellants were awarded their costs of the appeal.
Orders
Orders of the court
1. Appeal allowed.
2. Vary order 1 made by the court below by substituting "$175,000" for $200,000".
3. Vary order 3 made by the court below by omitting all words after "after" and substituting "5 April 2012".
4. That the respondent pay the appellants' costs of the appeal.
[Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.]