FRANKE v THE PUBLIC TRUSTEE [NO 2] [1993] NSWCA 102

FRANKE v THE PUBLIC TRUSTEE [NO 2] SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL

KIRBY P, CLARKE and MEAGHER JJA 16 April 1993, 16 April 1993 [1993] NSWCA 102

TESTATORS' FAMILY MAINTENANCE — Family Provision Act testator aged 79 leaves estate with nett value of approximately $67,000 — will leaves entire estate to second son — no provision for former wife (divorced) or oldest or youngest sons — former wife and oldest son now residing in Germany — claim under Act by former wife and oldest son dismissed by Master Windeyer — on appeal to Court of Appeal — held: (Clarke JA; Kirby P and Meagher JA concurring)

(Dismissing the appeal):

(1) In respect of the claim by the former wife, no error was shown in the Master's finding that no "factors warranted" the making of a provision under the Act having regard to (a) the break-up of the marriage and divorce from the testator; (b) The lack of a continuing relationship between the former wife and the testator; (c) the acceptance of a (probably consensual) property settlement following the divorce; (d) the relatively small size of the estate; and (e) the established interest in real property on the part of the former wife established by the evidence;

(2) In respect of the Master's finding dismissing the claim by the eldest son, no error was shown of failing to take account of the relative claims of the sons - or by the reference to the fact that the appellant was an adult son.

Hunter v Hunter (1987) 8 NSWLR 573 (CA) referred to.

Family Provision Act 1982, s9(1).

Kirby P I will ask Clarke JA to give the first judgment.

Clarke JA This is an appeal by two disappointed claimants who brought claims under the Family Provision Act, 1982. They are the former wife and eldest child of the deceased who died on 26 February 1989, aged seventy-nine.

The deceased left a will dated 2 July 1985 and probate of that will was granted to the Public Trustee on 5 May 1989. Under the will the deceased left the whole of his estate to his middle son Hans. The estate is a small one consisting of a property at 4/50-52 Earl Street, Cammeray, and about $3,000 in cash in a bank.