FOX AND ANOR v DOCKREY [1992] NSWCA 70

FOX AND ANOR v DOCKREY [1992] NSWCA 70

No error of law or principle was demonstrated in the Master's conclusions that the respondent had a need for accommodation and that the will did not adequately provide for it. The fresh evidence of separation from her husband does not establish that her need is now any less or greater, so the same order for provision is appropriate. Discretion was exercised correctly in light of all circumstances, and the appeal should be dismissed with minor clarification of orders.

Parties
Appellants: Fox and Anor; Respondent: Dockrey
Jurisdiction
Australia
Judgment Date
12 March 1992
Procedural Posture
Appeal / Judgment on Appeal From Order of Master Mc Laughlin, Supreme Court of New South Wales Equity Division
Outcome
Appeal dismissed with costs
Legal Topics
Family Provision, Discretionary Orders, Testator's Duty, Need, Conduct Disentitling, Appeal Powers
Equity Succession Law Family Provision Discretionary Orders Testator's Duty Need Conduct Disentitling Appeal Powers

Case Brief

Summary, issues, holding and outcome

More case intelligence is available

Unlock the full research layer for this judgment.

Full judgment text Downloadable case file Legal principles 3 Authorities cited 7 Party arguments 2 Amounts and remedies 6
Sign in to unlock

Parties

Fox and Anor

Appellants

Dockrey

Respondent

Procedural Posture

Appeal / Judgment on Appeal From Order of Master Mc Laughlin, Supreme Court of New South Wales Equity Division

Legal Issues

  1. 1 Whether the Master erred in granting family provision in favour of the respondent under the Family Provision Act 1982
  2. 2 Whether the respondent demonstrated a need justifying an order for provision
  3. 3 Whether the conduct of the respondent disentitled her from provision

Ratio Decidendi

No error of law or principle was demonstrated in the Master's conclusions that the respondent had a need for accommodation and that the will did not adequately provide for it. The fresh evidence of separation from her husband does not establish that her need is now any less or greater, so the same order for provision is appropriate. Discretion was exercised correctly in light of all circumstances, and the appeal should be dismissed with minor clarification of orders.

Court Disposition

Appeal dismissed with costs

Orders

  • In lieu of the benefit given in para (c)(iii) of the will of Dulcie May Fox, the plaintiff (respondent) to receive a legacy of $200,000, such legacy to bear interest from 7 May 1990 to date of payment;
  • In lieu of the benefits given in para (c)(i) and (c)(ii) of the said will, the appellants (defendants) to receive the residue of the estate in equal shares;