Keep v Bourke [2012] NSWCA 64

Keep v Bourke [2012] NSWCA 64

The primary judge did not err in finding jurisdiction under s 59(1)(c), because he considered the parties' circumstances and the estrangement and was entitled to find that the respondent was not excluded from a claim. However, the discretion under s 59(2) miscarried because the primary judge found that the respondent's conduct in relation to the estrangement reduced her moral claim but made no actual reduction, effectively awarding her about one-third of the estate. The order was therefore varied by reducing the legacy from $200,000 to $175,000.

Jurisdiction
Australia
Judgment Date
05 April 2012
Procedural Posture
Appeal in Family Provision Proceedings Under Part 3 of the Succession Act 2006 / Appeal From an Order Made in the Equity Division by Macready as J Under S 59 of the Succession Act 2006 Giving the Respondent a Legacy Out of the Deceased's Estate
Outcome
Appeal allowed; family provision legacy varied from $200,000 to $175,000; respondent to pay the appellants' costs of the appeal.
Legal Topics
['application for Provision Under Part 3 Succession Act 2006' 'estrangement Between Adult Child and Testatrix' 'adequate Provision for Proper Maintenance, Education or Advancement in Life' 'two Stage Family Provision Inquiry' 'discretionary Error Under House V the King']
['succession' 'family Provision' 'appellate Review'] ['application for Provision Under Part 3 Succession Act 2006' 'estrangement Between Adult Child and Testatrix' 'adequate Provision for Proper Maintenance, Education or Advancement in Life' 'two Stage Family Provision Inquiry' 'discretionary Error Under House V the King']

Case Brief

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Procedural Posture

Appeal in Family Provision Proceedings Under Part 3 of the Succession Act 2006 / Appeal From an Order Made in the Equity Division by Macready as J Under S 59 of the Succession Act 2006 Giving the Respondent a Legacy Out of the Deceased's Estate

Legal Issues

  1. 1 ['Whether the primary judge erred at the jurisdictional or first stage by finding that adequate provision for the respondent had not been made by the will despite the estrangement, the statement in the will and the competing claims of the appellants.' 'Whether the primary judge erred in holding that the respondent was not barred from making a claim because the deceased had refused to attempt reconciliation.' "Whether the primary judge's discretion miscarried at the second stage by failing to give effect to his finding that the respondent's conduct reduced her moral claim." "Whether the amount of the legacy should be varied having regard to the estate, the parties' needs and the estrangement."]

Ratio Decidendi

The primary judge did not err in finding jurisdiction under s 59(1)(c), because he considered the parties' circumstances and the estrangement and was entitled to find that the respondent was not excluded from a claim. However, the discretion under s 59(2) miscarried because the primary judge found that the respondent's conduct in relation to the estrangement reduced her moral claim but made no actual reduction, effectively awarding her about one-third of the estate. The order was therefore varied by reducing the legacy from $200,000 to $175,000.

Court Disposition

Appeal allowed; family provision legacy varied from $200,000 to $175,000; respondent to pay the appellants' costs of the appeal.

Orders

  • ['Appeal allowed.' 'Vary order 1 made by the court below by substituting "$175,000" for $200,000".' 'Vary order 3 made by the court below by omitting all words after "after" and substituting "5 April 2012".' "That the respondent pay the appellants' costs of the appeal."]