NEWNHAM v TARBERT [1990] NSWCA 138

NEWNHAM v TARBERT

SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL

SAMUELS, MAHONEY and CLARKE JJA 21 September 1990, 21 September 1990

[1990] NSWCA 138

Family Provision Act 1982 Appeal from Master — Family Provision Act 1982 — Order that de facto wife have $150,000 to purchase a home unit for herself — Effect of habits of deceased and applicant as to alcohol, standard of living and cleanliness upon duty of deceased to provide for applicant — appeal dismissed with costs.

Appeal dismissed with costs.

Mahoney JA David Stephen Dunn died on 16 June 1381 aged approximately 63 years. He was a widower. His assets available for the purposes of the present application were found by the learned Master to be in excess of $650,000 at the relevant date.

The deceased left as his family three children: Mrs Spooner - Pauline Patricia Spooner, Mrs Winterbine - Christine Barbara and Mr Dunn - Stephen David Dunn. They are all adults and well settled in their own lives.

The effect of the will of the deceased was stated by the learned Master as being that, after providing for a number of legacies, a legacy of $10,000 was left to, as I shall describe i her, the plaintiff Mrs Tarbert on a condition, namely that she was to vacate Flat 2, 4 Frenchman's Road, Randwick. The will left other legacies of $10,000 each to the children, whom I shall describe briefly as Pauline and Stephen, and the remainder of the estate was left to the daughter, whom I shall describe briefly as Christine.

Applications were made under the Family Provision Act by Stephen and Pauline in proceeding number 5339/86 and by the present applicant, Mrs Tarbert, in proceeding number 4257/87.

The proceedings were heard by Master McLaughlin on 19 and 20 April and on 1 May 1989 the Master made orders in the following terms:

"The orders I make in matter no 5339 of 1986 are: