SINGER v BERGHOUSE [1992] NSWCA 230

SINGER v BERGHOUSE

SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL

KIRBY P, SHELLER and Cripps JJA 5 June 1992, 23 July 1992

[1992] NSWCA 230

TESTATORS FAMILY MAINTENANCE — Family Provision Act — claim by widow — second marriage — entire estate goes to adult son — whether provision inadequate for proper maintenance of widow — widow returns to comfortable home in New York — held: Inadequate provision not shown — error of discretion not shown — appeal dismissed. TESTATORS FAMILY MAINTENANCE — Family Provision Act 1982 — claim by widow receiving no provision pursuant to will — ante nuptial agreement between widow and testator — second marriage for both — parties agree that pre-marriage property is reserved to children of first marriages — post-marriage property to be shared — widow leaves New York to reside with testator in Sydney — unsuccessful search for matrimonial home terminates in death of testator after eleven months marriage — will provides for sharing of post-marriage property and for life estate to widow in any joint real property purchased — no such property purchased at time of death — widow returns to New York with only benefit $8,480 — son of testator takes under will entire estate valued at $464,756 — Master dismisses claim finding no need on the part of the widow for a provision under the Act — on appeal to the Court of Appeal — held: (per Sheller and Cripps JJA; Kirby P dissenting): Although the widow was an "eligible person" under the Act, no error had been shown in the decision of the Master and the appeal from that decision should be dismissed.

Bosch and Anor v Perpetual Trustee Company (Limited) and Ors [1938] AC 463; (1938) 38 SR (NSW) 176 (PC); Hunter v Hunter and Ors (1987) 8 NSWLR 573 (CA) applied.

TESTATORS FAMILY MAINTENANCE - ante nuptial agreement - effect of - whether admissible - whether relevant - whether authorities under Family Law Act 1975 (Cth) applicable - consideration of Bates v Bates (1976) FLC #90-123; In the Marriage of Sykes and Sykes, Dotch and Others (1978) 4 Fam L N 49; (1979) FLC #90-652; Klesnik v Klesnik (1987) FLC #91-837; Faraone v Shabalah (1988) FLC#91-956 considered - held: Such agreements are admissible but not determinative of the application of the Act. Lieberman and Anor v Morris (1944) 69 CLR 69 applied.