KELEHEAR v SMITH [1990] NSWCA 102

KELEHEAR v SMITH

SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL

KIRBY P, MEAGHER and HANDLEY JJA 3 August 1990, 4 October 1990

[1990] NSWCA 102

TESTATORS' FAMILY MAINTENANCE — dairy farmer's will leaves real estate to sons and legacies of $1,000 to three daughters — one daughter dies before action — one daughter secures order under the Act for a legacy of $35,000 — claim of one son and a daughter for further provision under the Act, dismissed — daughter appeals — trial judge (Waddell CJ in Eq) finds that the will failed to provide adequately for the daughter — finds that the deceased had an obligation to provide her with a small legacy to deal with contingencies — finds further that no such order could be made having regard to the size of the estate and the prior claims of one brother and the other sister — held: (1)(by the Court) Care must be taken in the review by the Court of Appeal of determinations as to entitlement to an order under the Act and as to the amount of any such order. White v Barron (1980) 144 CLR 431, 445; Hunter v Hunter (1987) 8 NSWLR 573, 576 applied; (2)(per Handley JA, Meagher JA concurring; Kirby P dissenting) Having regard to the evidence of the assets and liabilities of the estate and the finding of the prior entitlements of the brother and the sister, there were insufficient assets to permit the making of an order under s3 of the Act in favour of the appellant sister. The power or "jurisdiction" to make an order does not oblige the Court to make such an order — that depending on the available estate at the time of the order. Borthwick Borthwick [1948] Ch 645, 651; Dun v Dun [1959] AC 272 applied.

EXECUTORS and ADMINISTRATORS — commission -entitlement to — discussion by Handley JA of the nature of and entitlement to executors' commission. In re McIntosh (1902) 2 SR (NSW) 185 (Eq); Commission of Stamp Duties v Pearse [1954] AC 91, 113 referred to.