SHANNON v SHANNON [1991] NSWCA 245

SHANNON v SHANNON SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL

KIRBY P, SAMUELS and MEAGHER JJA 7 May 1991, 31 May 1991 [1991] NSWCA 245

TEM — Family Provision — legacy to one daughter — not to son error of fact finding — held: Smaller legacy to son justified by moral duty and needs. EXECUTORS and ADMINISTRATORS duty to provide evidence to court in Family Provision cases — limits on. TESTATORS' FAMILY MAINTENANCE — mother's will — leaves family home to eldest daughter — no provision made for son and younger daughter, all adults — at trial before Master, legacy ordered of $50,000 in favour of younger daughter claim by son dismissed — on appeal — held (1) It is unnecessary on this case to determine whether the primary decision of the Master was "discretionary" or "jurisdictional" in character. If it was flawed by error of fact finding the appellate court could intervene. House v The Ring (1936) 55 CLR 499, 505 applied; White v Barron (1980) 144 CLR 431, 445; Hunter v Hunter (1987) 8 NSWLR 573, 576; Kelehear v Smith, Court of Appeal, unreported, 4 October 1990; (1990) NSWJB 132 applied; (2) The Master erred in finding, as a fact, that the eldest daughter had ceased work for a year prior to the testatrix's death to attend to her and this error authorised the Court to review his findings; (3) Upon a review of the evidence, the son had established both a moral claim and need and was entitled to a legacy of $20,000 which sum bore a proper proportion to the entitlements of the sisters, to the size of the estate, to the desire of leaving the eldest sister in her home if possible and to the moral obligation of the testatrix to provide for the entitlement and needs of the son. — EXECUTORS and ADMINISTRATORS — provision of evidence duty of executor to provide evidence to court — held: It is not the duty of an executor in a claim under the Family Provision Act 1982 to provide evidence to the court of the alternative accommodation of beneficiaries under the will, in the event that the will is disturbed. The obligation of the executor is limited to disclosing the assets and liabilities of the estate. Churton v Christian (1988) 13 NSWLR 241, 242 explained. Family Provision Act 1982 s7