PRICE v ROBERTS [1992] NSWCA 191

PRICE v ROBERTS SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL

PRIESTLEY, CLARKE and HANDLEY JJA 16 APRIL 1992, 23 September 1992 [1992] NSWCA 191

FAMILY PROVISION ACT 1982 — DISENTITLING CONDUCT — MURDER — COMMUNITY STANDARDS Family Provision Act 1982 — will of mother — daughter not beneficiary — application by daughter to vary will in her favour — applicant convicted of murder of husband — held that such a crime disentitled applicant from relief under the Act — appeal from decision. Held: s9(3)(b) Family Provision Act broadly similar to s3(2) Testators Maintenance Act 1916 — section is to be broadly construed — relevant character and conduct not to be limited — Court to apply its understanding of community standards in determining whether relief

appropriate — unable to find error in decision; (Per Priestley JA): decision discretionary — no material misunderstanding of facts — decision not so clearly at variance as to what might reasonably be expected as to justify a finding of error.

Priestley JA The chief facts of this case are set out in Clarke JA's reasons. The judgment arrived at by the trial judge was a discretionary one. His reasoning on the materials before him does not in my opinion show any material misunderstanding of the facts of the case or the relevant principles. Nor did he arrive at an answer so clearly at variance with what might be reasonably expected to be the outcome that the court would be justified in thinking there must have been some error involved in the way he reached his conclusion.

I therefore feel constrained to agree with Clarke JA that the appeal should be dismissed with costs.

Clarke JA Mrs Catherine Roberts died on 4 September 1989 leaving a will whereby she gave small legacies to the War Widows' Guild and to the children of her daughter, Lorraine May Price ("the Appellant") and the residue of her estate to her son Graham Hugh Roberts ("the first respondent"). Probate was duly granted and the estate was valued for probate purposes at approximately $340,000.