VAGG v VAGG [1991] NSWCA 272

VAGG v VAGG

SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL HANDLEY, PRIESTLEY and CLARKE JJA

18 June 1991, 18 June 1991

[1991] NSWCA 272

FAMILY PROVISION ACT — NO QUESTION OF PRINCIPLE

Handley JA This is an appeal from the judgment of Master Windeyer who heard two applications under the Family Provision Act. The applicants before the Master and the appellants in this Court are the son and daughter of the first marriage of the deceased. The deceased, the late Neil Raymond Vagg, died on 20 January 1988 aged sixty-six leaving a will dated 11 January 1975, and being survived by the appellants, his divorced first wife and his second wife. In the events that happened a gift of real estate at Oatley contained in that will in favour of the appellants failed when it was adeemed in 1980 as a result of the deceased selling that property. In the result the will of the deceased made no provision for the appellants and his widow was the sole beneficiary.

The case, therefore, is one in which the deceased made no financial provision for the appellants by his will.

After the deceased and his first wife separated he made only modest contributions by way of maintenance towards the support of his children. He made no further provision for them during his lifetime once they reached the age at which maintenance payments ceased.

The Master set out his findings of fact in a careful judgment and with one minor and presently irrelevant exception there has been no challenge to his primary findings.

The appellant, Mrs Ross, and her husband jointly own through a unit trust a half share in a printing business which was established during 1968. Their joint income after tax at the time of the hearing before the Master was about $29,000 a year. Mrs Ross said in her affidavit sworn in October 1988 some thirteen months before the hearing, that the joint assets of her husband and herself were then worth $220,500 gross and $128,500 nett. However, as the Master pointed out, Mrs Ross and her husband also had current accounts with the unit trust with a face value of some $16,000 and the printing business would have probably had some goodwill value which was not included in Mrs Ross' statement of the assets of her husband and herself.