Allen v The Public Trustee [2006] NSWCA 49

Allen v The Public Trustee [2006] NSWCA 49

No error was shown in Windeyer J's discretionary refusal to make provision. The appellant controlled trust assets including a property worth about $800,000 from which he could reasonably obtain funds of the order claimed, could support himself if he abandoned his incessant litigation, had no close relationship with the testator, and any provision would probably go to litigation creditors or fund further litigation. Refusing to take money from the siblings' shares in those circumstances was not unreasonable or plainly unjust.

Jurisdiction
Australia
Judgment Date
17 March 2006
Procedural Posture
Family Provision Act Appeal / Appeal From Dismissal of Summons in Supreme Court Equity Division
Outcome
Appeal dismissed with costs.
Legal Topics
['adequate Provision From Deceased Estate' 'eligible Child Excluded From Will' 'discretionary Decision' 'appellate Intervention']
['succession' 'family Provision' 'appellate Review'] ['adequate Provision From Deceased Estate' 'eligible Child Excluded From Will' 'discretionary Decision' 'appellate Intervention']

Case Brief

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Procedural Posture

Family Provision Act Appeal / Appeal From Dismissal of Summons in Supreme Court Equity Division

Legal Issues

  1. 1 ["Whether Windeyer J erred in dismissing the appellant's application under the Family Provision Act 1982 for provision from the testator's estate." 'Whether the discretionary decision that no provision should be made was affected by error of the kind described in House v The King.' "Whether the appellant's access to trust assets, earning capacity, relationship with the testator and litigation-related debts justified refusing provision."]

Ratio Decidendi

No error was shown in Windeyer J's discretionary refusal to make provision. The appellant controlled trust assets including a property worth about $800,000 from which he could reasonably obtain funds of the order claimed, could support himself if he abandoned his incessant litigation, had no close relationship with the testator, and any provision would probably go to litigation creditors or fund further litigation. Refusing to take money from the siblings' shares in those circumstances was not unreasonable or plainly unjust.

Court Disposition

Appeal dismissed with costs.

Orders

  • ['Appeal dismissed with costs.']