FOX AND ANOR v DOCKREY [1992] NSWCA 70

FOX AND ANOR v DOCKREY SUPREME COURT OF NEW SOUTH WALES EQUITY DIVISION

GLEESON CJ, MAHONEY and CLARKE JJA 12 March 1992, 12 March 1992

[1992] NSWCA 70

FAMILY PROVISION ACT — APPEAL — DISCRETION — NEED — CONDUCT DISENTITLING — RE FULOP DECEASED (1987) 8 NSWLR 679, APPLIED.

Gleeson CJ In this matter I will ask Mr Justice Clarke to deliver the first judgment.

Clarke JA This is an appeal from a judgment of Master McLaughlin given on 19 August 1991 in which the learned Master made an order in favour of the respondent under the Family Provision Act 1982.

The testatrix, who died on 18 March 1989, executed her last will and testament on 14 February of that year. In that will she left her estate to her three children. She left the respondent, her only daughter who was born on 2 August 1933, one-fifth of the estate. She left her two sons, who are the appellants before us and who were born on 9 June 1939 and 26 August 1944 respectively, two-fifth share each.

The respondent brought the claim upon the basis that she had a need which had not been adequately reflected in the will and as I have indicated the learned Master accepted that contention and found for her.

The estate of the testatrix consisted of real estate being a home unit at Fairlight estimated to have a value of about $200,000 and other assets totalling in excess of $240,000. It is common ground that at the date of the judgment the estate had a net value of $425,000.

The order made by the learned Master was to the following effect and I quote:

"Tn lieu of the benefit given to her by the will the plaintiff is to receive a legacy of $200,000, such legacy to bear interest from 7 May 1990 until payment."

The thrust of the learned Master's reasoning was that the respondent had a need for residential accommodation and that it was necessary to make an order along the lines of the order I have indicated to satisfy that need. What the learned Master actually said was: