GOLOSKY v GOLOSKY [1993] NSWCA 111

GOLOSKY v GOLOSKY [1993] NSWCA 111

The majority held that the testator failed to make adequate provision for his widow as the right of occupation was unduly restrictive and the legacy insufficient. However, the Master's discretion miscarried by not adequately considering alternative provisions that would secure the widow's independence and accommodation while respecting the testator's intention to leave the remainder in the family home to his grandchildren. The provision of a larger legacy ($300,000) would be more appropriate and minimally disturb the testamentary disposition.

Parties
Respondent: Mrs Vivian Chester Golosky; Executor/appellant: David John Golosky; Executor/appellant: Stephen Paul Golosky
Jurisdiction
Australia
Judgment Date
05 October 1993
Procedural Posture
Appeal / Final Appellate Judgment
Outcome
Appeal allowed (majority)
Legal Topics
Testator's Family Maintenance, Family Provision Applications, Adequacy of Testamentary Provision, Discretionary Intervention in Wills
Succession Law Family Provision Testator's Family Maintenance Family Provision Applications Adequacy of Testamentary Provision Discretionary Intervention in Wills

Case Brief

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Parties

Mrs Vivian Chester Golosky

Respondent

David John Golosky

Executor/appellant

Stephen Paul Golosky

Executor/appellant

Procedural Posture

Appeal / Final Appellate Judgment

Legal Issues

  1. 1 Was adequate provision made for the widow by the testator's will?
  2. 2 Should the provision in the will be disturbed and if so, to what extent?
  3. 3 Is a legacy or a right of occupancy/life estate more appropriate for a spouse under the Family Provision Act?

Ratio Decidendi

The majority held that the testator failed to make adequate provision for his widow as the right of occupation was unduly restrictive and the legacy insufficient. However, the Master's discretion miscarried by not adequately considering alternative provisions that would secure the widow's independence and accommodation while respecting the testator's intention to leave the remainder in the family home to his grandchildren. The provision of a larger legacy ($300,000) would be more appropriate and minimally disturb the testamentary disposition.

Court Disposition

Appeal allowed (majority)

Orders

  • Set aside the Master's orders dated 14 December 1990.
  • In lieu, delete clause 3 of will; amend clause 4 to remove widow's right of occupation; amend clause 6 legacy from $150,000 to $300,000.