SMITH v DAYMAN and ORS [1994] NSWCA 286

SMITH v DAYMAN and ORS [1994] NSWCA 286

The Master's discretion miscarried because he failed to consider adequately the impact of his order on the housing needs of the respondents and did not fully appreciate the extent and effects of the appellant's disabilities; the amount awarded was insufficient for the proper maintenance and advancement of the appellant in all the circumstances.

Parties
Appellant: Barbara Smith; Respondent: Elizabeth Dayman; Respondent: Susan Parker; Respondent: Lesa Parker; Respondent: James Parker
Jurisdiction
Australia
Judgment Date
09 September 1994
Procedural Posture
Appeal / Court of Appeal Decision on Appeal From Orders Made by a Master Under the Family Provision Act
Outcome
Appeal allowed
Legal Topics
Exercise of Discretion, Notional Estate, Testamentary Duty, Appeals From Discretionary Decisions
Family Provision Succession Law Exercise of Discretion Notional Estate Testamentary Duty Appeals From Discretionary Decisions

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Parties

Barbara Smith

Appellant

Elizabeth Dayman

Respondent

Susan Parker

Respondent

Lesa Parker

Respondent

James Parker

Respondent

Procedural Posture

Appeal / Court of Appeal Decision on Appeal From Orders Made by a Master Under the Family Provision Act

Legal Issues

  1. 1 Whether the Master's exercise of discretion under the Family Provision Act miscarried when making a further provision for the estranged daughter out of the deceased's estate.

Ratio Decidendi

The Master's discretion miscarried because he failed to consider adequately the impact of his order on the housing needs of the respondents and did not fully appreciate the extent and effects of the appellant's disabilities; the amount awarded was insufficient for the proper maintenance and advancement of the appellant in all the circumstances.

Court Disposition

Appeal allowed

Orders

  • Set aside the judgment of Master Windeyer in so far as it ordered payment to the plaintiff of a legacy of $26,000 carrying interest from 18 February 1990.
  • Remit the proceedings to the Equity Division for determination of what additional provision, if any, should be made for the plaintiff from the estate (including notional estate) considering all relevant circumstances at the further hearing.