Sayer v Sayer

Case [1999] NSWCA 340


CITATION: SAYER v SAYER; GARBUTT v SAYER [1999] NSWCA 340
FILE NUMBER(S): CA 40499/98; 40503/98
HEARING DATE(S): 30 July 1999
JUDGMENT DATE:
23 September 1999

PARTIES :


CA 40499/98
Anne Louise Sayer - Appellant
Francesca Jane Sayer - Respondent
CA 40503/98
Jane Margaret Garbutt - Appellant
Anne Louise Sayer - Respondent
JUDGMENT OF: Sheller JA at 1; Hodgson CJinEq at 39; Davies AJA at 99
LOWER COURT JURISDICTION: Supreme Court - Equity Division
LOWER COURT FILE NUMBER(S) : 3141/97
3637/97
LOWER COURT JUDICIAL OFFICER: Bryson J
COUNSEL: CA 40499/98
P Hallen SC - Appellant
D B McGovern/ P D Rodionoff - Respondent
CA 40503/98
D K Jordan - Appellant
P Hallen SC - Respondent
SOLICITORS: CA 40499/98
B Bilinsky & Co - Appellant
Duncan MacLean - Respondent
CA 40503/98
Lamond Howard & Associates - Appellant
B Bilinsky & Co - Respondent
CATCHWORDS: WILLS - application for provision out of estate - where insufficient funds available in estate to meet legacies - circumstances under which such application to be granted where order for provision would necessitate sale of matrimonial home - provision for dependant wife paramount
ACTS CITED: Family Provision Act 1982
New Zealand Family Protection Act 1908
Testators Family Maintenance & Guardianship of Infants Act 1916
CASES CITED:
Bosch v Perpetual Trustee Company Limited [1938] AC 463
Eggler v Mitchelmore, NSW Court of Appeal, 11 November 1992, unreported
Golosky v Golosky, NSW Court of Appeal, 5 December 1994, unreported
Green v Green, Hodgson J, 16 July 1985 and 11 September 1985 unreported;
Hoadley v Hoadley, Young J, 17 December 1987, unreported
In Re Allardice, Allardice v Allardice [1910] 29 NZLR 959
King v Foster (unreported) Court of Appeal, 7 December 1995
Luciano v Rosenblum (1985) 2 NSWLR 65
Permanent Trustee v Fraser (1995) 36 NSWLR 24
Singer v Berghouse (1994) 184 CLR 201
Southgate v Waterford (1990) 21 NSWLR 427
DECISION: CA 40499/98; 1. Appeal allowed; 2. Set aside the orders made by Bryson J other than the orders that the plaintiff’s costs of the proceedings be paid by the defendant out of the estate of the testator and that the defendant’s costs of the proceedings be paid or retained out of the estate of the testator; 3. In lieu of the orders set aside in order 2, order that the application be dismissed; 4. The respondent to pay the costs of this appeal but to have a certificate under the Suitors Fund Act 1951; CA 40503/98; Appeal dismissed with costs

THE SUPREME COURT

OF NEW SOUTH WALES
COURT OF APPEAL
                          CA 40499/98; 40503/98
                          ED 3141/97; 3637/97
                              SHELLER JA
                              HODGSON CJ in EQ
                              DAVIES AJA
SAYER v SAYER
GARBUTT v SAYER

By his last will the testator left his wife, Mrs Anne Sayer, his house situated in Bowral and its contents. The testator left cutlery, paintings and $10,000 to his daughter, Mrs MacLean. To his grand-daughter, Francesca Sayer, the daughter of Mrs Garbutt, the testator left $10,000. He left the residue of the estate to his wife. The two gifts…

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AGLC
Sayer v Sayer [1999] NSWCA 340
Case
[1999] NSWCA 340
Decision Date

CaseChat Overview and Summary

In *Sayer v Sayer*, the Court of Appeal of New South Wales considered an application for provision out of a deceased’s estate. The dispute arose because the estate lacked sufficient funds to satisfy both the specific legacies bequeathed in the will and the claim for provision made by a dependant wife. The central question was whether an order for provision should be granted when it would necessitate the sale of the matrimonial home, thereby impacting other beneficiaries.

The court was required to determine the circumstances under which an application for provision from an estate should be granted, particularly when the estate's assets were insufficient to meet all claims. Specifically, the court had to consider the paramountcy of provision for a dependant wife in such a scenario, and whether the sale of the matrimonial home was an appropriate means to achieve this provision, even if it prejudiced other beneficiaries.

The Court of Appeal allowed the appeal, setting aside the primary judge's orders that had granted provision to the plaintiff. The court reasoned that while provision for a dependant wife is a significant consideration, it is not an absolute entitlement that overrides all other claims or considerations. In this instance, the court found that the circumstances did not warrant an order for provision that would require the sale of the matrimonial home, thereby diminishing the estate to the detriment of other beneficiaries. The court ultimately dismissed the application for provision.

Orders

Orders of the court

CA 40499/98; 1. Appeal allowed; 2. Set aside the orders made by Bryson J other than the orders that the plaintiff’s costs of the proceedings be paid by the defendant out of the estate of the testator and that the defendant’s costs of the proceedings be paid or retained out of the estate of the testator; 3. In lieu of the orders set aside in order 2, order that the application be dismissed; 4. The respondent to pay the costs of this appeal but to have a certificate under the Suitors Fund Act 1951; CA 40503/98; Appeal dismissed with costs

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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