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.
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…
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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Marshall v Carruthers [2002] NSWCA 47
Case
[2002] NSWCA 47
Decision Date
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.