1. Appeal allowed. 2. Orders below set aside, and in lieu thereof order that the estate of the deceased be divided between the daughters of the deceased and the appellant in the proportions of two-sevenths to each daughter and one-seventh to the appellant. 3. Order that the costs of the respondents below and on appeal be paid out of the estate of the deceased on an indemnity basis. 4. Order that the costs of the appellant of the proceedings below be paid out of the estate of the deceased. 5. Order that the respondents pay the appellant’s costs of the appeal, and have a certificate under the Suitors’ Fund Act if otherwise entitled, and that they be reimbursed for these costs from the estate of the deceased.
CATCHWORDS:
SUCCESSION - FAMILY PROVISION AND MAINTENANCE - Moral obligation or moral claim - Inadequate provision for proper maintenance - What is "adequate" and what is "proper" to be assessed having regard to objective circumstances, not just circumstances known to deceased - Relevance of "bare paternity".
David Norman Nicholls - appellant/applicant Deborah Anne Hall - 1st respondent/opponent Gregory Robert Hall - 2nd respondent/opponent Donna Louise Robinson - 3rd respondent/opponent Gregory James Robinson - 4th respondent/opponent Deanne Elizabeth Day - 5th respondent/opponent Colin William Day - 6th respondent/opponent
FILE NUMBER(S):
CA 49832/06
COUNSEL:
Mr. L. Ellison SC for the appellant Mr. J. Wilson SC with Mr. D. Liebhold for respondents
SOLICITORS:
Turnbull Hill Lawyers, Charlestown for appellant Kells The Lawyers, Shellharbour for respondents
FACTS The appellant was born in 1959, the child of a brief relationship between his mother and a Mr. Kelly (the deceased). This relationship terminated before the appellant was born and the appellant did not meet the deceased until 1995, by which time the deceased had married and had three daughters.
Since then, the only contact between the two had been 11 telephone calls, five of which were initiated by the appellant and six by the deceased, with the last one in September 2003 on the deceased’s 73rd birthday.
The appellant was…
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
Nicholls v Hall [2007] NSWCA 356
Case
[2007] NSWCA 356
Decision Date
CaseChat Overview and Summary
The case of *Nicholls v Hall* concerned an appeal to the Court of Appeal of New South Wales regarding a claim for provision from the estate of a deceased person. The appellant, Mr. Nicholls, sought provision from the estate, which was contested by the deceased's daughters.
The primary legal issue before the Court of Appeal was whether the deceased had made adequate provision for the proper maintenance, education, and advancement in life of the appellant. This required the Court to consider the nature of the deceased's moral obligation or claim upon the estate, and to assess what constituted "adequate" and "proper" provision, taking into account objective circumstances beyond those known to the deceased. The relevance of "bare paternity" was also a consideration in determining the appellant's claim.
The Court of Appeal allowed the appeal, finding that the provision made for the appellant was inadequate. The Court reasoned that the assessment of adequate and proper provision must be based on objective circumstances, and that the deceased's moral obligation extended to the appellant. Consequently, the Court set aside the original orders and ordered that the estate be divided between the deceased's daughters and the appellant in specific proportions. The Court also made detailed orders regarding the costs of the proceedings, with costs generally to be paid out of the estate.
Orders
Orders of the court
1. Appeal allowed. 2. Orders below set aside, and in lieu thereof order that the estate of the deceased be divided between the daughters of the deceased and the appellant in the proportions of two-sevenths to each daughter and one-seventh to the appellant. 3. Order that the costs of the respondents below and on appeal be paid out of the estate of the deceased on an indemnity basis. 4. Order that the costs of the appellant of the proceedings below be paid out of the estate of the deceased. 5. Order that the respondents pay the appellant's costs of the appeal, and have a certificate under the Suitors' Fund Act if otherwise entitled, and that they be reimbursed for these costs from the estate of the deceased.