TSIVINSKY v TSIVINSKY [1991] NSWCA 269

TSIVINSKY v TSIVINSKY

SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL

KIRBY P, MAHONEY and PRIESTLEY JJA 12 November 1991, 5 December 1991

[1991] NSWCA 269

TESTATORS FAMILY MAINTENANCE — family provision — will gives all to son — claim by grandchildren — "eligibility" — factors warranting application — proper tests — whether order ought to have been made — need for mediation. — held: (by the Court) (1) The grandchildren were "eligible persons" within s8(1), definition (d) of the Act; (2) In the peculiar facts of the case, including the residence of each grandchild with the deceased for various particular times during infancy and childhood and their established needs there were factors warranting the making of their applications. Re Fulop, Deceased (1987) 8 NSWLR 679; Churton vy Christian and Ors (1988) 13 NSWLR 241 (CA) applied; (3) Proof of eligibility and of factors warranting an application did not of themselves require the making of an order under the Act. Benney v Jones, Court of Appeal, unreported, 18 June 1991 applied; (4) In determining what order, if any, ought to be made under s7 of the Act is necessary, amongst other things, for the Court to (a) take into account the size of the estate available for distribution; and (b) take into account the principle that the will should be disturbed only to the extent necessary to give effect to the provisions of the Act; (5) (per Kirby P) The orders of the trial judge (Hodgson J) providing legacies to the grand-daughter of $96, 000 and to the grandson of $48,000 in an estate of $420,000 sufficiently revealed error in the exercise of the discretion provided by the Act as to permit the setting aside of those orders; (per Mahoney JA) The order for the grandson revealed error; (per Priestley JA) No error was shown; (6) (Kirby P agreeing with Priestley JA to secure an order of the Court) Appeal dismissed with costs. LAW REFORM — family provision — practice and procedure mediation — observations by Kirby P on the need for mediation of such disputes to reduce costs. Hemmes Hermitage Pty Limited y Abdurahman and Anor (1991) 22 NSWLR 343, 351 (CA) referred to. PRACTICE and PROCEDURE — Court of Appeal — order — securing order where judges differ — proper approach to — Woolworths Australia Limited v Kelly (1991) 22 NSWLR 189, 200 (CA) applied. WORDS and PHRASES — "ought". Courts (Mediation and Arbitration) Act 1991 Family Law Act 1975 (Cth) Family Provision Act 1982, s6(1), s7, s9(1), s9(2), s9(3). Testators' Family Maintenance and Guardianship of Infants Act 1916.