NEW SOUTH WALES. Testator's Family Maintenance-Will-Exclusion of son from benefit-Provision
made for him in testator's lifetime-Estate left to other sons both of whom in comfortable circumstancesExcluded son not as well-to-do-Able-bodied and SYDNEY,
in good health-Able to support himself-Entitlement to order-Amount proper Sept. 26, 27;
A testator, who was survived by five sons and two daughters all over the age of thirty-five years, bequeathed a legacy of £500 to each daughter and gave his net residuary estate of value about £30,000 to two of his sons equally as tenants in common. He declared that he had made no provision for his other three sons, one of whom was A. M., as he had adequately provided for them in his lifetime. The testator's two daughters had married husbands who were well able to support them and his two sons, apart from A. M., who took nothing under his will had with assistance from the testator in the form of guarantees of advances successfully established themselves in life as graziers. A. M., the testator's second son aged 49 years at the death of his father in 1954, was a poultry farmer having assets worth £7,830 and liabilities of £2,450. He was a widower, without children, and since 1946 he and a war widow whom he had not married because marriage would have involved the loss of a pension received by her, had lived as man and wife. He was able-bodied and in good health and in the year ended 30th June 1956 had a net income of £400 after paying interest to his bank and making required reductions in the amount of his overdraft. A. M. had worked on the testator's property for about a year after leaving school at the age of 17 years, after which time he became, at the testator's instance, a bank clerk, in which employment he remained for three or four years. Thereafter until 1928 he followed various
callings, in which year the testator dissuaded him from taking up a position in Perth and brought him home to work on the testator's properties. He was then aged 25 years and he remained working on the properties until 1936, at which time he left to try some other occupation. When he left, the testator gave him £300. He worked as a traveller in Sydney until his enlistment in the A.I.F. in 1940. His wife, whom he married in 1937, became seriously ill soon after his discharge in 1944 and died in 1946. After the war A. M. ventured unsuccessfully into pig farming, using as part of his capital a sum of £1,200 given him by the testator. In 1947 he turned to poultry farming and the testator gave him a further sum of £1,200 to assist him in this new venture. At all times A.…
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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AGLC
McCosker v McCosker [1957] HCA 82
Case
[1957] HCA 82
Decision Date
CaseChat Overview and Summary
The appeal concerned an application made by Athol William McCosker (the respondent) under the *Testator's Family Maintenance and Guardianship of Infants Act 1916-1954* (N.S.W.) against the estate of his deceased father, Cornelius McCosker. The respondent, one of five sons and two daughters, was excluded from the testator's will, which left the net residuary estate of approximately £30,000 to two other sons. The testator's stated reason for excluding the respondent and two other sons was that he had adequately provided for them during his lifetime. The Supreme Court of New South Wales ordered the executors to pay the respondent a legacy of £6,500. The executors appealed this decision to the High Court of Australia.
The legal issues before the High Court were whether the testator had failed to make adequate provision for the respondent's proper maintenance and advancement in life, and if so, what amount was appropriate to award from the estate. The appellants argued that no order should have been made, or alternatively, that the sum awarded was excessive. The respondent contended that the testator had a moral duty to provide for him, given his financial circumstances and the testator's substantial estate, which had already been used to establish other sons comfortably.
Dixon C.J. and Williams J. held that the trial judge was justified in finding that the respondent was entitled to an order under the Act, noting that the inclusion of "advancement in life" in the legislation was significant and not limited to a beneficiary's early years. They reasoned that while the respondent was able-bodied and capable of earning a living, this did not automatically preclude him from succeeding in such an application, as each case depended on its specific circumstances. However, they found the sum of £6,500 to be too liberal, considering the respondent's financial position, his income, and the potential for tax deductions if he expanded his poultry farm. Kitto J., dissenting, was of the opinion that the respondent had not made out a case for an order, finding that the testator had likely made a correct judgment about his moral obligations and that the respondent, being healthy and independent, had not been left without adequate provision.
The appeal was allowed, and the order of the Supreme Court was varied to reduce the legacy awarded to the respondent from £6,500 to £3,500. The costs of the appeal were to be paid out of the testator's residuary estate.