DE WINTER v JOHNSTONE [1995] NSWCA 120

DE WINTER v JOHNSTONE [1995] NSWCA 120

The appeal was dismissed as the Court of Appeal found no error in the Master's finding that the appellant did not provide an adequate explanation for failing to bring her application within the prescribed period, and agreed that the deceased had not failed to fulfil any moral duty to the appellant by the terms of his will. Thus, sufficient cause for extension of time was not shown, and no basis for disturbing the discretionary decision was established.

Parties
Appellant: Veronica Graham de Winter; Respondent/executrix: Meriel Barbara Johnstone; Respondent/executrix: Ailsa Barbara Halliday
Jurisdiction
Australia
Judgment Date
23 August 1995
Procedural Posture
Appeal / Appeal From Refusal to Extend Time for Making a Family Provision Application and From Dismissal of Application for Relief
Outcome
appeal dismissed
Legal Topics
Family Provision, Extension of Time, Testator's Family Maintenance, Exercise of Judicial Discretion
Succession Law Family Provision Extension of Time Testator's Family Maintenance Exercise of Judicial Discretion

Case Brief

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Parties

Veronica Graham de Winter

Appellant

Meriel Barbara Johnstone

Respondent/executrix

Ailsa Barbara Halliday

Respondent/executrix

Procedural Posture

Appeal / Appeal From Refusal to Extend Time for Making a Family Provision Application and From Dismissal of Application for Relief

Legal Issues

  1. 1 Whether the Master erred in finding no adequate explanation for the appellant not having commenced proceedings within the prescribed period for a family provision application
  2. 2 Whether the Master erred in determining that the deceased had not failed in his moral duty to the appellant by reason of his will

Ratio Decidendi

The appeal was dismissed as the Court of Appeal found no error in the Master's finding that the appellant did not provide an adequate explanation for failing to bring her application within the prescribed period, and agreed that the deceased had not failed to fulfil any moral duty to the appellant by the terms of his will. Thus, sufficient cause for extension of time was not shown, and no basis for disturbing the discretionary decision was established.

Court Disposition

appeal dismissed

Orders

  • Appeal dismissed with costs.