WENTWORTH v WENTWORTH [1992] NSWCA 267

WENTWORTH v WENTWORTH

SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL

SAMUELS AP, PRIESTLEY and HANDLEY JJA 9-10 December 1991, 16 December 1991, 3 March 1992 [1992] NSWCA 267

FAMILY PROVISION ACT — ("the Act") — application by daughter — contest at trial concerning relationship between daughter and testator — substantial provision made by testator for daughter during testator's lifetime — subsequent estrangement — reduction of daughter's assets in connection with litigation.

NOTIONAL ESTATE — trial judge orders that shares in family company held by testator's son be designated as notional estate makes order for provision for maintenance but not advancement out of the designated notional property by annual payment of money on conditions akin to those of a protective trust — on appeal, and cross-appeal, chief points argued were: (i) was daughter entitled to order in the circumstances, (ii) if so, was she entitled to an order for advancement, (iii) did the shares in the family company fall within the notional estate provisions of the Act, (iv) should the protective trust type conditions have been imposed on the order, (v) should the provision made be increased or altered, (vi) the costs orders of the trial judge held, the trial judge should be upheld as to (i), (iii) and (vi), was in error as to (ii) and (iv), and in regard to (v) that a lump sum should be ordered.

Samuels AP I agree with Priestley JA.

Priestley JA Nature of Appeal This appeal is about the property of the late MrG.N. Wentworth and the claim by his daughter Ms Katherine Wentworth for provision from his estate for her maintenance and advancement in life. Ms Wentworth made this claim as plaintiff under the Family Provision Act 1982 ("the Act"). By s7 of the Act the court had the power to order that such provision be made out of the late Mr Wentworth's estate and notional estate as, in the court's opinion, ought, having regard to the circumstances at the time of the order, to be made for her maintenance and advancement in life.