Neale v Neale

[2015] NSWCA 206

Court of Appeal

Supreme Court

New South Wales

• Summary available

Medium Neutral Citation:	Neale v Neale [2015] NSWCA 206
Hearing dates:	11 June 2015
Decision date:	17 July 2015
Before:	Basten JA at [1]; Macfarlan JA at [41]; Gleeson JA at [42]
Decision:	(1)   Dismiss the appeal.  (2)   Order that the appellant pay the respondents’ costs in this court.
Catchwords:	SUCCESSION – family provision – application by adult children of earlier marriage – deceased left entirety of his estate to his widow – no provision made for his children from first marriage – previously the children forwent part of their grandmother’s estate in favour of deceased – deceased promised to make provision for them – whether court entitled to take into account the children’s expectation resulting from the representation – whether foregoing part of the grandmother’s estate a discharge of moral obligation to deceased and thus a reason not to make – Succession Act 2006 (NSW), s 60(2)(a) and (b)   SUCCESSION – family provision – adult children with demonstrated financial needs – widow with competing claims to the estate – whether trial judge properly balanced competing claims – whether judge erred in his discretion finding the widow was financially “relatively secure”
Legislation Cited:	Civil Procedure Act 2005 (NSW), ss 60, 98 Succession Act 2006 (NSW), ss 58, 60; Pt 3.2
Cases Cited:	Luciano v Rosenblum (1985) 2 NSWLR 65
Category:	Principal judgment
Parties:	Sandra Cheryl Neale (Appellant) Craig Russell Neale (First Respondent) Michelle-Maree Best (Second Respondent)
Representation:	Counsel: L Ellison SC/A M Hawkins (Appellant) S A Wells (Respondents)   Solicitors: Miller Noyce (Appellant Caldwell & O’Brien (Respondents)
File Number(s):	2014/240357
Decision under appeal	Court or tribunal: Supreme Court Citation: Neale v Neale [2014] NSWSC 965 Date of Decision: 16 July 2014 Before: Lindsay J File Number(s): 2012/364929

Judgment

1. BASTEN JA: The deceased, John Anthony Neale, died on 25 November 2011, leaving the whole of his estate to his widow, Sandra Cheryl Neale. The inventory of property annexed to the application for probate estimated the value of the estate at $1.7 million. After the land and business half owned by the deceased and half owned by his widow, the appellant, had been sold, the net value was a figure between $1.21 million and $1.45 million.

2. The deceased had three children by an earlier marriage. Two of the three children sought provision from the estate under Part 3.2 of the Succession Act 2006 (NSW). [1] The claimants commenced proceedings in the Equity Division by summons filed on 23 November 2012. Those proceedings were determined by a judgment of Lindsay J delivered on 16 July 2014. [2] The Court awarded legacies to be paid from the notional estate of the deceased (his assets having been disposed of, although with notice of the claims) in an amount of $100,000 for each claimant. His widow challenged those orders. In addition to seeking to have the legacies set aside, she also sought orders that the respondents pay her costs of the appeal and in the court below.…