GOLOSKY v GOLOSKY [1993] NSWCA 111

GOLOSKY vy GOLOSKY

SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL

KirBY P, HANDLEY and Cripps JJA 8 September 1993, 5 October 1993

[1993] NSWCA 111

TESTATORS FAMILY MAINTENANCE — Family Provision allegation that testator made inadequate provision for widow — duty of testator — substantial estate — provision of legacy ($150,000) — right of occupation of home — bank account and personal property — testator aged 70 marries applicant aged 40 twelve weeks prior to death following motor car accident — applicant a national of USA intends to remain in Australia with daughter — at trial Master Gressier confirms legacy but substitutes fee simple in family home for right of occupation — order deprives six grandchildren of remainder interest in family home intended by testator — on appeal by executors.

held: (by the Court): (1) No error was shown in the determination by the Master that, by his will, the testator made inadequate provision for the proper maintenance and advancement in life of his widow - reference to the disadvantages of a right of occupation. Moore v Moore, Court of Appeal, unreported, 16 May 1984 consd - reference to rights of independence of widows and entitlement to independent life and provision therein following death of spouse. Luciano v Rosenblum (1985) 2 NSWLR 65 (SC) consd; (2) (by Kirby P and Cripps JA; Handley JA dissenting): The Master's discretion miscarried in that he failed adequately to consider alternative provisions for the widow which would have secured her accommodation and independence whilst respecting the testator's wish to provide the remainder interest in his family home to his grandchildren; (3) Legacy of $300,000 substituted. Family Provision Act, 1982, s6, and s9.

Kirby P In Perrin and Ors v Morgan and Ors [1943] AC 399 (HL) at 415, Lord Atkin warned judges, faced with disputes over wills, of the prospect that they might one day be obliged to meet "the group of ghosts of dissatisfied testators" who "according to a late Chancery judge, wait on the other bank of the Styx to receive the judicial personages who have misconstrued their wills." Waiting there too will be those whose wills have been interfered with unnecessarily or excessively. Cf Kearns v Ellis and Anor, Court of Appeal, unreported, 5 December 1984 per Mahoney JA 21. This appeal should be approached with Lord Atkin's salutary warning in mind.