CHURTON v CHRISTIAN [1988] NSWCA 23

CHURTON v CHRISTIAN [1988] NSWCA 23

The Court held that, considering all the circumstances, factors existed which warranted Mrs Christian’s application but not those of Mrs Bailey or Mr G. Christian, and that provision should be made for Mrs Christian and Miss Churton only, each receiving one half of the estate; the applications of Mrs Bailey and Mr G. Christian should be dismissed for lack of sufficient need and in recognition of the comparatively greater claims of Mrs Christian and Miss Churton.

Parties
Appellant/beneficiary/executrix: Miss Churton; Respondent/former Wife: Mrs Christian; Respondent/son: Mr G. Christian; Respondent/daughter of Former Wife (stepdaughter): Mrs Bailey
Jurisdiction
Australia
Judgment Date
10 June 1988
Procedural Posture
Appeal / Appellate Decision
Outcome
Appeal allowed in part
Legal Topics
Eligible Persons Under Family Provision Act 1982, Moral Duty of Testator, Factors Warranting Application Under S 9(1), Assessment of Need and Provision, Testamentary Recognition
Family Provision Wills and Estates Eligible Persons Under Family Provision Act 1982 Moral Duty of Testator Factors Warranting Application Under S 9(1) Assessment of Need and Provision Testamentary Recognition

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Parties

Miss Churton

Appellant/beneficiary/executrix

Mrs Christian

Respondent/former Wife

Mr G. Christian

Respondent/son

Mrs Bailey

Respondent/daughter of Former Wife (stepdaughter)

Procedural Posture

Appeal / Appellate Decision

Legal Issues

  1. 1 What are the factors warranting the making of an application under s 9(1) of the Family Provision Act 1982 for former spouses and stepchildren?
  2. 2 How should competing claims for family provision be evaluated under the FP Act 1982?
  3. 3 Was the trial judge’s (Master’s) decision as to distribution of the estate correct in law and on the evidence?

Ratio Decidendi

The Court held that, considering all the circumstances, factors existed which warranted Mrs Christian’s application but not those of Mrs Bailey or Mr G. Christian, and that provision should be made for Mrs Christian and Miss Churton only, each receiving one half of the estate; the applications of Mrs Bailey and Mr G. Christian should be dismissed for lack of sufficient need and in recognition of the comparatively greater claims of Mrs Christian and Miss Churton.

Court Disposition

Appeal allowed in part

Orders

  • Applications of Mrs Bailey and Mr G. Christian dismissed
  • Estate to be divided equally, one half to Miss Churton and one half to Mrs Christian