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
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…
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
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