Sgro v Thompson

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.