KING v FOSTER [1995] NSWCA 240

KING v FOSTER [1995] NSWCA 240

The Court of Appeal (by majority) held that although the ex-nuptial child had established need and absence of adequate provision, the modest size of the estate, priority of the widow's financial needs, and errors in factual findings regarding estate value made it inappropriate to order provision for the child. As a result, the application for provision was dismissed and the primary judgment set aside.

Parties
Appellant/widow/executrix: Beryl Doreen King; Respondent/ex Nuptial Child/claimant: Patricia Anne Foster
Jurisdiction
Australia
Judgment Date
07 December 1995
Procedural Posture
Appeal / Court of Appeal Decision
Outcome
Appeal upheld; application for provision dismissed.
Legal Topics
Claim by Ex Nuptial Child, Adequate Provision for Spouse and Child, Relative Positions of Spouse and Child in Family Provision, Factual Findings in Family Provision Claims, Costs in Family Provision Litigation
Testators' Family Maintenance Family Provision Wills and Estates Claim by Ex Nuptial Child Adequate Provision for Spouse and Child Relative Positions of Spouse and Child in Family Provision Factual Findings in Family Provision Claims Costs in Family Provision Litigation

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Parties

Beryl Doreen King

Appellant/widow/executrix

Patricia Anne Foster

Respondent/ex Nuptial Child/claimant

Procedural Posture

Appeal / Court of Appeal Decision

Legal Issues

  1. 1 Whether the testator’s failure to provide for an ex-nuptial child justified family provision under the Family Provision Act 1982.
  2. 2 Whether provision for the widow should take priority over provision for the ex-nuptial child given the modest size of the estate.
  3. 3 Whether factual errors by the primary judge (Brownie J) in assessing the estate’s value vitiated the exercise of discretion.

Ratio Decidendi

The Court of Appeal (by majority) held that although the ex-nuptial child had established need and absence of adequate provision, the modest size of the estate, priority of the widow's financial needs, and errors in factual findings regarding estate value made it inappropriate to order provision for the child. As a result, the application for provision was dismissed and the primary judgment set aside.

Court Disposition

Appeal upheld; application for provision dismissed.

Orders

  • Orders of Brownie J set aside.
  • Application for provision by Patricia Anne Foster dismissed.