EGGLER v MITCHELMORE [1992] NSWCA 63

EGGLER v MITCHELMORE

SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL

PRIESTLEY, HANDLEY and SHELLER JJA 23 October 1992, 11 November 1992

[1992] NSWCA 63

The deceased, the appellant's mother, left a substantial estate, which, under her will and apart from two small legacies was to be divided, as to half, between five charities and as to the other half equally between the appellant and her three children.

The appellant had since her marriage been financially supported by her husband. At the date of the orders she was 52; at the date of the appeal nearly 54. Her husband was 56 at the date of the orders and approximately 59 at the date of the appeal. The three children were adult and independent.

Since adolescence the appellant had spent a significant part of her life caring for the deceased and later managing her property. The deceased's need for care was brought about by her lifestyle and heavy drinking. The appellant and her husband had foregone business opportunities so as to be in a position to give this care. The deceased had made some monetary provision for the appellant during her lifetime.

The Master made orders to the effect that the appellant should receive from the estate either $80,000 or her interest under the will, whichever was greater.

Held: In the circumstances and there being no other competing claims on the deceased's bounty:

1. The provision in the deceased's will for the appellant was inadequate for her proper maintenance.

2. Adequate provision for the appellant's proper maintenance called for a sum sufficient to enable her to maintain a reasonable standard of living accordant with that she currently enjoyed without recourse to her capital assets, consisting, in large part, of the matrimonial home. In particular she should not have been left in a situation of anxiety as to future provision.