Marshall v Carruthers

Case [2002] NSWCA 47


CITATION: Marshall v. Carruthers; Marshall v. Marshall [2002] NSWCA 47
FILE NUMBER(S): CA 40670/01; 40671/01
HEARING DATE(S): 22 February 2002
JUDGMENT DATE:
22 February 2002

PARTIES :


Margaret Lesley Marshall - appellant
Linda Hope Carruthers - respondent (40670/01)
Kim Neil Marshall - respondent (40671/01)
JUDGMENT OF: Hodgson JA at 1; Young CJ in Eq at 71; Palmer J at 78
LOWER COURT JURISDICTION : Supreme Court - Equity Division
LOWER COURT
FILE NUMBER(S) :
ED5141/00
ED2839/01
LOWER COURT
JUDICIAL OFFICER :
Master Macready
COUNSEL: Mr. C. Bevan for appellant
Mr. L. Ellison for Ms. Carruthers
Submitting appearance by Mr. Kim Marshall
SOLICITORS: Turner Freeman, Sydney for appellant
Teece Hodgson & Ward, Sydney for respondent
CATCHWORDS: SUCCESSION - Family provision and maintenance - Whether provision by testator inadequate - Necessity to determine what if any provision made - Provision by testator for person with legitimate claim - Relevance of this to what is "inadequate" and what is "proper" in relation to another person with a legitimate claim - Relevance of marriage and care of children to strength of surviving partner's claim. D.
LEGISLATION CITED: Family Provision Act s.9(2)
CASES CITED:
Voges v. Monaghan (1954) 94 CLR 231
In Re Snowden [1979] Ch. 528
Brown v. Pourau [1995] 1 NZLR 352
Luciano v Rosenblum [1985] 2 NSWLR 65 at 69
DECISION: In both cases, appeal allowed and summons dismissed.



                          CA 40670/01
                          SC 5141/00

                          CA 40671/01
                          SC 2839/01

                          HODGSON JA
                          YOUNG CJ IN EQ
                          PALMER J

                          Friday 22 February 2002.

MARSHALL V. CARRUTHERS


MARSHALL V. MARSHALL

Judgment

1 HODGSON JA: On 3 August 2001 Master Macready made orders in two Family Provision Act proceedings in the estate of Neil Marshall, one brought by Linda Carruthers the de facto wife of the deceased, and one by Kim Marshall the son of the deceased, who I will refer to as Kim.

2 The order in favour of Ms Carruthers was that she receive a specific bequest of the deceased’s half interest in a property in Herbert Street, Newtown, on certain conditions, and that she receive certain personal items; and the order in favour of Kim was that he receive a legacy of $20,000. The costs of all parties were ordered to be paid out of the estate, with some provision for abatement of the costs of the plaintiffs.

3 On 16 November 2001, Master Macready ordered that the costs of the defendant to both proceedings, the executrix Margaret Marshall, be on an indemnity basis up to the commencement of the hearing, and on a party and party basis thereafter.

4 Mrs Marshall has appealed from these decisions.

5 I will commence with a brief outline of the circumstances.

6 Mrs Marshall married the deceased in 1967. Kim, who was their only child, was born on 17 January 1980. In December 1990, the deceased and Mrs Marshall purchased the house at Herbert Street, Newtown as joint tenants.

7 On 23 December 1992, the deceased made his last will. He appointed Mrs Marshall executrix, and gave the…

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Marshall v Carruthers [2002] NSWCA 47
Case
[2002] NSWCA 47
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CaseChat Overview and Summary

In *Marshall v Carruthers*, the New South Wales Court of Appeal considered appeals concerning family provision claims. The dispute centred on whether the provision made by a testator was inadequate for certain beneficiaries, and how the testator's provision for other beneficiaries with legitimate claims should be weighed in determining what was "inadequate" or "proper" for the appellants. The relevance of a surviving partner's marriage and care of children to the strength of their claim was also a factor.

The Court was required to determine the adequacy of the provision made by the testator for the applicants, and to consider the impact of provision made for other beneficiaries with legitimate claims on the assessment of the applicants' claims. The Court also had to assess the weight to be given to the surviving partner's marriage and responsibility for children in the context of a family provision application.

The Court reasoned that the testator's provision for one beneficiary, who had a legitimate claim, was a relevant consideration when assessing the adequacy of provision for another beneficiary with a legitimate claim. The Court emphasised that the testator's intentions, as reflected in their will, should be respected unless there were compelling reasons to interfere. The Court found that the provision made by the testator was not inadequate in the circumstances, and that the applicants had not demonstrated that they were left without adequate provision for their maintenance, education, and advancement in life.

Consequently, in both appeals, the Court allowed the appeals and dismissed the summonses.

Orders

Orders of the court

In both cases, appeal allowed and summons dismissed.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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