Macfarlan JA at [1]; White JA at [118]; McCallum JA at [190]
Decision:
(1) In respect of John Steiner’s claim for provision under the Succession Act, allow the appeal and vary the orders made below on 26 September 2018 in Case Number 2012/185566 by deleting Orders 3(n) and (p), 6 and 7.
(2) In respect of Robyn Webster’s claim under the Succession Act:
(a) allow the appeal in part;
(b) vary Order 1 made below on 26 September 2018 in Case Number 2012/139833 by adding after the words “(the Award)” the words “and the amount in order 2(a)”; and
(c) otherwise dismiss the appeal.
(3) Allow the cross-appeal and vary Order 2(c) by replacing the expression “clause 3(b)” with the expression “clause 3(c)” and adding the words “and the legacy payable to Elizabeth Fuggle under clause 3(b) of the Deceased’s will”.
(4) Extend the time for the filing of the cross-appeal to the date upon which it was filed.
(5) Order that the costs of all parties to the appeals (as distinct from the cross-appeal) be paid out of the estate on an indemnity basis.
(6) Order that the cross-respondents pay the cross-appellants’ costs of their amended notice of motion filed in the court below on 28 May 2018 and of the cross-appeal.
(7) Order that the cross-respondents have certificates under the Suitors’ Fund Act 1951 (NSW), if qualified.
Catchwords:
SUCCESSION – family provision orders under Succession Act 2006 (NSW) – whether exercises of discretion miscarried and the amounts of additional provisions ordered should be reduced – whether exercise of discretion miscarried with respect to who should bear the burden of additional provisions
APPEALS – nature of appeal – standard of review applicable to family provision orders under s 59(1)(c) of the Succession Act 2006 (NSW)
[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
Strang v Steiner [2019] NSWCA 143
Case
[2019] NSWCA 143
Decision Date
CaseChat Overview and Summary
This matter concerned appeals and a cross-appeal from family provision orders made under the *Succession Act 2006* (NSW). The primary dispute involved claims for provision from the estate of the deceased, Mr. Strang, by his son, John Steiner, and his daughter, Robyn Webster. The appeals challenged the original court's exercise of discretion in making additional provision from the estate and determining who should bear the burden of those provisions.
The court was required to determine whether the original court had miscarried its discretion in ordering additional provision for the claimants and, if so, whether the amounts of those provisions should be reduced. Furthermore, the court had to consider whether the original court had erred in its determination of which beneficiaries should bear the burden of any additional provision ordered. The standard of review applicable to appeals from family provision orders under s 59(1)(c) of the *Succession Act 2006* (NSW) was also a key consideration.
The appellate court allowed the appeal in relation to John Steiner's claim, varying the original orders by deleting specific provisions relating to his entitlement. In respect of Robyn Webster's claim, the appeal was allowed in part, with variations made to the original order to include an additional amount. The cross-appeal was also allowed, with variations to an order concerning a legacy payable to Elizabeth Fuggle. The court ordered that the costs of the appeals be paid out of the estate on an indemnity basis, while the costs of the cross-appeal were to be paid by the cross-respondents.
Orders
Orders of the court
(1) In respect of John Steiner’s claim for provision under the Succession Act, allow the appeal and vary the orders made below on 26 September 2018 in Case Number 2012/185566 by deleting Orders 3(n) and (p), 6 and 7.
(2) In respect of Robyn Webster’s claim under the Succession Act:
(a) allow the appeal in part;
(b) vary Order 1 made below on 26 September 2018 in Case Number 2012/139833 by adding after the words “(the Award)” the words “and the amount in order 2(a)”; and
(c) otherwise dismiss the appeal.
(3) Allow the cross-appeal and vary Order 2(c) by replacing the expression “clause 3(b)” with the expression “clause 3(c)” and adding the words “and the legacy payable to Elizabeth Fuggle under clause 3(b) of the Deceased’s will”.
(4) Extend the time for the filing of the cross-appeal to the date upon which it was filed.
(5) Order that the costs of all parties to the appeals (as distinct from the cross-appeal) be paid out of the estate on an indemnity basis.
(6) Order that the cross-respondents pay the cross-appellants’ costs of their amended notice of motion filed in the court below on 28 May 2018 and of the cross-appeal.
(7) Order that the cross-respondents have certificates under the Suitors’ Fund Act 1951 (NSW), if qualified.