SAYER v SAYER; GARBUTT v SAYER [1999] NSWCA 340

SAYER v SAYER; GARBUTT v SAYER [1999] NSWCA 340

The trial judge erred by making excessive provision to the grandchild that would effectively remove the widow from her matrimonial home, thereby leaving her without adequate provision for her proper maintenance. The statutory test of 'proper maintenance' requires that the widow’s claim be given priority, and the...

Source-derived case information.

Parties
Appellant: Anne Louise Sayer; Respondent: Francesca Jane Sayer; Appellant: Jane Margaret Garbutt; Respondent: Anne Louise Sayer
Jurisdiction
Australia
Judgment Date
23 September 1999
Procedural Posture
Appeal / Judgment on Appeal
Outcome
Mrs Sayer's appeal allowed; Mrs Garbutt's appeal dismissed with costs.
Legal Topics
Family Provision, Testamentary Disposition, Widow's Entitlement, Provision for Grandchildren
Wills and Estates Equity Family Provision Testamentary Disposition Widow's Entitlement Provision for Grandchildren

Source-derived case record

Summary, issues, holding and outcome

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Parties

Anne Louise Sayer

Appellant

Francesca Jane Sayer

Respondent

Jane Margaret Garbutt

Appellant

Anne Louise Sayer

Respondent

Procedural Posture

Appeal / Judgment on Appeal

Legal Issues

  1. 1 Whether the trial judge erred in making an order for provision of $90,000 for the granddaughter out of an insufficient estate
  2. 2 Whether the order appropriately prioritised the widow's claim over the grandchild's
  3. 3 Whether the application of the statutory test of 'proper maintenance' was conducted correctly

Ratio Decidendi

The trial judge erred by making excessive provision to the grandchild that would effectively remove the widow from her matrimonial home, thereby leaving her without adequate provision for her proper maintenance. The statutory test of 'proper maintenance' requires that the widow’s claim be given priority, and the appealable error was found in the substitution of 'appropriate' for 'proper maintenance.' The appropriate order is to allow the widow's appeal, dismiss the grandchild's application, but uphold the dismissal of the daughter's appeal as the trial judge’s discretion was properly exercised.

Court Disposition

Mrs Sayer's appeal allowed; Mrs Garbutt's appeal dismissed with costs.

Orders

  • CA 40499/98: Appeal allowed; set aside orders made by Bryson J except for cost orders in favour of the plaintiff and defendant from the estate; dismissed the application in substitution; the respondent to pay appeal costs with certificate under the Suitors Fund Act 1951.
  • CA 40503/98: Appeal dismissed with costs.