SAMSLEY v BARNES [1990] NSWCA 161

SAMSLEY v BARNES SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL

KIRBY P, SAMUELS and MEAGHER JJA 25 September 1990, 7 December 1990

[1990] NSWCA 161

FAMILY PROVISION — de facto husband's claim — bona fide relationship of eighteen years enduring to death — testatrix by her will makes no provision for her partner — leaves entire estate (valued at trial at approx $22,000) to godson aged twenty-seven — summons for provision to be made out of the estate in favour of the male partner of the deceased dismissed by Equity Division (Master Hogan) — held: (1) (by the Court) The Master's discretion had miscarried on the ground that (a) it contained an important factual error relating to the amount deposited in a bank account of the plaintiff; and (b) it found a failure to make adequate provision but, in contradiction, found no established need; (2) (by the Court) The Court of Appeal was authorised to, and should, reconsider the exercise of discretion under the Act according to law; (3) (per Meagher JA, Samuels JA concurring; Kirby P dissenting) Notwithstanding the lack of worthiness of the godson, the plaintiff had not shown that he was "bereft of adequate provision". He had sufficient means to provide himself "not only with bread and butter but also with a little cheese or jam". Blore v Lana (1960) 104 CLR 124, 135 applied; (4) Appeal, accordingly, (by majority) dismissed with costs.

FAMILY PROVISION — de facto partner — discussion by members of the Court of the proper approach to claims by de facto partners. Luciano v Rosenblum (1985) 2 NSWLR 65; Hunter v Hunter and Ors (1987) 8 NSWLR 573; Gorton v Parks (1989) 17 NSWLR 1, 7 considered.

FAMILY PROVISION — claim by persons eligible by statute — proper approach to — whether appropriate to adopt presumptions in respect of persons in particular relationships to the deceased eg adult able-bodied sons or persons in de facto relationships — Hunter v Hunter and Ors (1987) 8 NSWLR 573 discussed. Gorton v Parks (1989) 17 NSWLR 1 approved and Anderson v Teboneras [1990] VR 519 disapproved by Kirby P.