Tchadovitch v Tchadovitch

The appeal concerned a family provision claim brought by the respondent wife against the estate of her deceased husband, Mr. Tchadovitch. The appellants were the executors of the estate. The primary dispute revolved around the quantum of provision to be made for the respondent from the estate. The matter was heard in the Court of Appeal of New South Wales.

The court was required to determine whether the trial judge had erred in the process of calculating adequate provision for the respondent. Specifically, the court considered the use of actuarial evidence in determining the appropriate lump sum to secure an income for the respondent, and the relevance of the principles established in *Todorovic v Waller* to family provision matters. The court also had to consider whether the trial judge’s failure to derive a lump sum solely from figures yielded by 3% discount tables constituted an error. Furthermore, the court addressed the obligations of executors to provide relevant information and the principles governing costs orders, particularly in relation to the rejection of a *Calderbank* offer.

The Court of Appeal held that it was within the trial judge’s discretion to take into account expert and actuarial evidence, especially when both parties had presumed such evidence would be used. The court found that the use of such evidence could be helpful in family provision matters. The court affirmed that the trial judge was not erroneous in failing to rely exclusively on figures derived from 3% discount tables. Regarding costs, the court determined that indemnity costs were not available because the appellants had not acted unreasonably in rejecting the *Calderbank* offer, as the likely range of outcomes was not clear at the time of rejection.

The appeal was dismissed with costs. Leave to cross-appeal was granted, but the cross-appeal was also dismissed with costs. The appellants’ Notice of Motion filed on 30 September 2010 was dismissed with costs.