Haertsch v Whiteway [2020] NSWCA 133

Haertsch v Whiteway [2020] NSWCA 133

Section 24 of the Family Provision Act 1982 (NSW) does not permit property of Stephne Whiteway's estate, held by her executor, to be designated as the notional estate of Donald Whiteway. The power is limited to the direct recipient of the deceased's estate. Additionally, general assurances by Stephne were not sufficient cause to justify Elizabeth Whiteway's delay in applying and there was material prejudice to Stephne and her estate in permitting the late application. Extension of time was wrongly granted.

Parties
First Appellant: Adrian Haertsch (as executor of the estate of Stephne Whiteway); Second Appellant: Adrian Haertsch (as executor of the estate of Donald Whiteway); First Respondent: Elizabeth Whiteway; Second Respondent: Jane French
Jurisdiction
Australia
Judgment Date
03 July 2020
Procedural Posture
Appeal / Court of Appeal Judgment
Outcome
Appeal allowed, cross-appeal dismissed
Legal Topics
Family Provision, Notional Estate, Extension of Time
Succession Law Family Provision Notional Estate Extension of Time

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Parties

Adrian Haertsch (as executor of the estate of Stephne Whiteway)

First Appellant

Adrian Haertsch (as executor of the estate of Donald Whiteway)

Second Appellant

Elizabeth Whiteway

First Respondent

Jane French

Second Respondent

Procedural Posture

Appeal / Court of Appeal Judgment

Legal Issues

  1. 1 Whether property of Stephne Whiteway's estate can be designated notional estate of Donald Whiteway under Family Provision Act 1982 (NSW), s 24
  2. 2 Whether sufficient cause was shown to extend time for making a family provision application
  3. 3 Whether the primary judge erred in finding there was no material prejudice to the deceased beneficiary and her estate

Ratio Decidendi

Section 24 of the Family Provision Act 1982 (NSW) does not permit property of Stephne Whiteway's estate, held by her executor, to be designated as the notional estate of Donald Whiteway. The power is limited to the direct recipient of the deceased's estate. Additionally, general assurances by Stephne were not sufficient cause to justify Elizabeth Whiteway's delay in applying and there was material prejudice to Stephne and her estate in permitting the late application. Extension of time was wrongly granted.

Court Disposition

Appeal allowed, cross-appeal dismissed

Orders

  • Set aside orders 1, 2, 3, 4, 5, 6 and 7 made on 11 November 2016
  • Dismiss the amended statement of claim