McColl JA at [1]; Payne JA at [2]; White JA at [8]
Decision:
1. Appeal allowed. 2. Set aside the orders (a), (b) and (c) made on 21 December 2016. 3. In their place, order that the summons be dismissed. 4. Order that the respondent pay the appellant’s costs of the appeal and the proceedings below. 5. Grant the respondent a certificate pursuant to the Suitors’ Fund Act 1912 (NSW) in respect of the costs of the appeal.
Catchwords:
SUCCESSION — family provision — appeals — deceased left estate to one of two daughters – both daughters were loving and attentive children – respondent had financial need – respondent had received early inheritance - whether primary judge erred in ordering that provision be made under s 59 of Succession Act 2006 (NSW) in favour of respondent — whether appellate intervention warranted — consideration of correctness of “two-stage” approach in application of s 59 of the Succession Act 2006 (NSW) — whether primary judge erred in assessment of appellant’s claim on estate - whether primary judge failed to give proper consideration to deceased’s assessment of what was the appropriate testamentary disposition
A Gray, “Family Provision Applications: A Critique” (2017) 91 ALJ 750
Category:
Principal judgment
Parties:
Carmela Sgro (Appellant) Rosa Thompson (Respondent)
Representation:
Counsel:
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
Sgro v Thompson [2017] NSWCA 326
Case
[2017] NSWCA 326
Decision Date
CaseChat Overview and Summary
The appeal concerned a dispute over the deceased's estate, brought by one daughter (the respondent) against the other daughter (the appellant), who was the sole beneficiary under the deceased's will. The primary judge had ordered that provision be made from the estate for the respondent, who was described as a loving and attentive child but had significant financial need, having received an early inheritance. The appellant argued that the primary judge had erred in making this order. The appeal was heard by McColl, Payne and White JJA of the Court of Appeal of New South Wales.
The central legal issues before the Court of Appeal were whether the primary judge had erred in ordering provision for the respondent under section 59 of the *Succession Act 2006* (NSW), whether appellate intervention was warranted, and whether the primary judge had correctly applied the "two-stage" approach in assessing the respondent's claim. The appellant also contended that the primary judge had failed to give proper consideration to the deceased's own assessment of what constituted an appropriate testamentary disposition.
The Court of Appeal found that the primary judge had erred in their assessment. While acknowledging the respondent's financial need and her status as a loving child, the Court determined that the deceased's testamentary intentions, as evidenced by the will, were entitled to significant weight. The Court concluded that the deceased had made a considered decision regarding the distribution of her estate, and that the primary judge had not given sufficient regard to this. Consequently, the Court found that the threshold for making an order for provision had not been met.
The appeal was allowed, and the orders made by the primary judge were set aside. The summons for provision was dismissed, and the respondent was ordered to pay the appellant's costs of both the appeal and the proceedings below. The respondent was granted a certificate under the *Suitors’ Fund Act 1912* (NSW) in respect of the costs of the appeal.
Orders
Orders of the court
1. Appeal allowed.
2. Set aside the orders (a), (b) and (c) made on 21 December 2016.
3. In their place, order that the summons be dismissed.
4. Order that the respondent pay the appellant’s costs of the appeal and the proceedings below.
5. Grant the respondent a certificate pursuant to the Suitors’ Fund Act 1912 (NSW) in respect of the costs of the appeal.