SINGER v BERGHOUSE [1992] NSWCA 230

SINGER v BERGHOUSE [1992] NSWCA 230

By majority, the Court of Appeal held that the widow was an eligible person under the Family Provision Act 1982 but failed to show any error in the Master's rejection of her claim. Her assets and income did not demonstrate 'need' for a provision under the Act. The ante nuptial agreement was admissible and relevant but not determinative. No error of discretion by the Master was shown. Appeal dismissed. Kirby P dissented, finding the failure to provide for the widow was an error requiring intervention.

Parties
Appellant: Bernice Singer; Respondent: Maxwell Berghouse; Beneficiary: Joseph Singer
Jurisdiction
Australia
Judgment Date
23 July 1992
Procedural Posture
Family Provision Application / Appeal
Outcome
appeal dismissed (majority); dissenting opinion would have allowed appeal
Legal Topics
Testator's Family Maintenance, Family Provision, Ante Nuptial Agreement
Succession Law Testator's Family Maintenance Family Provision Ante Nuptial Agreement

Case Brief

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Parties

Bernice Singer

Appellant

Maxwell Berghouse

Respondent

Joseph Singer

Beneficiary

Procedural Posture

Family Provision Application / Appeal

Legal Issues

  1. 1 Whether the testator made inadequate provision for the proper maintenance of his widow under the Family Provision Act 1982
  2. 2 Effect and relevance of an ante nuptial agreement in family provision claims

Ratio Decidendi

By majority, the Court of Appeal held that the widow was an eligible person under the Family Provision Act 1982 but failed to show any error in the Master's rejection of her claim. Her assets and income did not demonstrate 'need' for a provision under the Act. The ante nuptial agreement was admissible and relevant but not determinative. No error of discretion by the Master was shown. Appeal dismissed. Kirby P dissented, finding the failure to provide for the widow was an error requiring intervention.

Court Disposition

appeal dismissed (majority); dissenting opinion would have allowed appeal

Orders

  • Appeal dismissed with costs. Kirby P dissenting.