Underwood v Gaudron

In *Underwood v Gaudron*, the appellant, an estranged daughter, appealed to the Court of Appeal of New South Wales against the dismissal of her family provision claim. The claim was brought out of time, more than three years after the death of the testatrix, by which time the estate had already been distributed. The respondents were the beneficiaries of the estate. The appellant also sought to adduce further evidence on appeal.

The appeal raised several legal issues. Firstly, it concerned whether the trial judge had demonstrated actual or apprehended bias, either due to a lack of personal relationship with a retired justice of the High Court involved in the proceedings or due to pre-judgment, evidenced by the judge's reliance on affidavit material not formally read at trial and potentially written prior to the hearing. Secondly, the appeal questioned whether the trial judge had erred in law or fact in dismissing the family provision claim, specifically regarding the weight given to the lengthy estrangement between the appellant and the deceased, the appellant's conduct, and the prejudice to beneficiaries caused by the significant delay in bringing the claim, despite the uncontested needs of the applicant.

The Court of Appeal dismissed the motion to adduce further evidence, finding it unnecessary. Regarding the bias allegations, the Court found no basis for actual or apprehended bias on the part of the trial judge. The Court reasoned that the seniority and standing of the retired justice did not inherently create a subconscious bias in the trial judge, and the judge's acknowledgment of reviewing all filed evidence at the commencement of the trial, even if parts of the judgment were written earlier, did not demonstrate pre-judgment to the appellant's disadvantage. On the family provision claim, the Court upheld the trial judge's decision, finding that while the applicant's needs were uncontested, the significant delay in bringing the claim, the prejudice to the beneficiaries, and the evidence of a difficult relationship and lack of reconciliation attempts were sufficient grounds for dismissal under section 58(2) of the *Succession Act 2006* (NSW).

Consequently, the Court of Appeal dismissed the appeal and ordered the appellant to pay the respondents' costs.