HOLCOMBE v HOLCOMBE [1993] NSWCA 137

HOLCOMBE v HOLCOMBE SUPREME COURT OF NEW SOUTH WALES — COURT OF APPEAL

GLEESON CJ, MEAGHER JA and HANDLEY JA 21 July 1993

[1993] NSWCA 137

FACTS: Former wife of deceased makes application under s. 7 and 9 Family Provision Act against notional estate left by deceased to widow. Master Windeyer refuses application.

HELD: (per curiam)

Family Provision Act, 1982; s.7 and s.9

Re Fulop (deceased) (1987) 8 NSWLR 697 Churton v Christian (1988) 13 NSWLR 241 O'Shaughnessy v Mantle (1986) 7 NSWLR 142 House v The King (1936) 55 CLR 499

(1) Circumstances of present case do not satisfy threshold requirements s 7 and 9 Family Provision Act.

(2) Status of a person whom will be regarded as a "natural object of testamentary recognition" is determined by circumstances in which a moral duty may arise between the testator and alleged eligible claimant.

Gleeson CJ. I will ask Meagher JA to give the leading judgment.

Meagher JA. This appeal is an appeal by the second wife of the deceased for an order for her maintenance and advancement. She was unsuccessful in making such a claim before Master Windeyer. The claim she makes is under the Family Provision Act, 1982. To have an order made in her favour she first must demonstrate that there are factors which warrant the making of the application: s 9(1).

The respondent is the deceased's third wife and his widow. Under the deceased's will his entire estate was left to his widow. The appellant is forty-three years old, highly intelligent, well qualified, able to work and in fact working. The respondent is a sixty-six year old Czechoslovakian with no adequate command of English and with no current occupation.

The appellant's net assets at the time of the application before Master Windeyer were at least $120,000.00. The assets of the respondent at the time of her marriage to the deceased were virtually nil. A condition of her leaving Czechoslovakia was that she renounced all proprietary rights she might have in that country. She also, of course, in a geographical sense renounced the company of her children.