Burke v Burke [2015] NSWCA 195

Burke v Burke [2015] NSWCA 195

The primary judge's evaluative judgment that no provision ought to be made for Terry out of the estate, notwithstanding his financial need and size of the estate, was not out of kilter with community values or legal principles, especially considering Terry's lengthy self-imposed estrangement and absence of reconciliation, and no error justifying appellate intervention was demonstrated.

Parties
Appellant: Terence John Burke; Respondent: Alan Michael Burke
Jurisdiction
Australia
Judgment Date
13 July 2015
Procedural Posture
Appeal / Court of Appeal Judgment
Outcome
Appeal dismissed with costs
Legal Topics
Estrangement, Adequate Provision, Family Provision Order, Community Values, Testamentary Discretion
Succession Family Provision Estrangement Adequate Provision Family Provision Order Community Values Testamentary Discretion

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Parties

Terence John Burke

Appellant

Alan Michael Burke

Respondent

Procedural Posture

Appeal / Court of Appeal Judgment

Legal Issues

  1. 1 Whether estrangement between parent and child precludes provision under a family provision application
  2. 2 Whether the deceased was under a duty to make provision for the estranged son in circumstances of significant financial need
  3. 3 Whether factual findings about the cause of estrangement and attempted reconciliation were in error

Ratio Decidendi

The primary judge's evaluative judgment that no provision ought to be made for Terry out of the estate, notwithstanding his financial need and size of the estate, was not out of kilter with community values or legal principles, especially considering Terry's lengthy self-imposed estrangement and absence of reconciliation, and no error justifying appellate intervention was demonstrated.

Court Disposition

Appeal dismissed with costs

Orders

  • Leave granted to extend the time for the filing of the appellant's notice of appeal to 16 October 2014.
  • Appeal dismissed with costs.