CHAPMAN v CHAPMAN [1991] NSWCA 51

CHAPMAN v CHAPMAN

SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL

GLEESON CJ, SAMUELS and HANDLEY JJA 9 September, 1991, 9 September 1991

[1991] NSWCA 51

EVIDENCE — fresh evidence — application on appeal to adduce as fresh evidence details of financial situation and evidence of alleged de facto relationship not tendered at hearing of application under Family Provision Act 1982: held that if this evidence had been given at first instance it would not have altered the result: Council of the City of Greater Wollongong v Cowan (1954) 93 CLR 435 applied.

Samuels JA This is an appeal from Master Windeyer who, on 13 October 1989, ordered, under the provisions of the Family Provision Act, that the plaintiff, the present respondent, should receive from the estate of Robert Chapman, the respondent's deceased husband, a legacy of $25,000.

The appellant is the son of the testator, born in 1957, and the sole executor of his will by which the whole of the estate was left to the appellant and the testator's daughter in equal shares.

In the circumstances in which the appeal has been prosecuted, and having regard to its limited basis, it is unnecessary to traverse any but a limited portion of the evidence before the master. It will suffice to say that the testator and the respondent married, each for the second time, in March 1982 when the respondent was forty eight and the testator fifty one. The testator was, and apparently had been for many years, an alcoholic, but this condition was not known to the respondent. The marriage, understandably enough, was unsuccessful and the parties separated in October 1982 although they continued to see one another thereafter.

The testator died on 12 June 1985. At the time of the proceedings before Master Windeyer the net estate was worth something in excess of $137,000, less the costs of proceedings. Before they were married the testator and the respondent entered into an agreement by which they undertook that they would maintain their estates separate from one another save for some exceptions which it is unnecessary to note. That is to say the agreement was they should maintain financial independence. The master, however, did not regard this agreement as denying any claim under the Familv Provision Act by one party on the other.