FRIEND and ANOR v FRIEND [1994] NSWCA 100

FRIEND v FRIEND

SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL

KirBY P, HANDLEY and SHELLER JJA 31 October 1994, 31 October 1994 [1994] NSWCA 100

TESTATOR'S FAMILY MAINTENANCE Family Provision Act — widow of second marriage left no provision in will — relationship of 5 1/2 years — estate $1 million order of legacy of $120,000 — appeal — held: No error — appeal dismissed.

White v Barron (1980) 144 CLR 431 referred to.

TESTATOR'S FAMILY MAINTENANCE - Family Provision Act 1982 claim - adequacy of provision in will of deceased for widow aged 69 at death - second marriage - estate of about $1 million - will makes no provision for widow - widow's capital assets at death $249,000 - income $249 per week from pension and superannuation - expenses $368 per week - at trial widow living within means by reduction of expenditure - widow's capital interests reduced to half share in property worth $200,000, an old car and $17,000 in bank - obligations upon widow to repair her house - pre marriage agreement that deceased and widow would retain their separate assets - Master McLaughlin provides a legacy for the widow of $120,000 under Act - on appeal to the Court of Appeal by the executor - held (Handley JA; Kirby P and Sheller JA concurring) (1) The pre marriage agreement had not been approved by the Court, and was not binding on the widow. (2) The Master had power to make the order having regard to the size of the estate, the relationship of 5 1/2 years, the widow's need for secure accommodation and the total failure of the deceased to make any provision for her in the will; (3) The quantification of the provision made showed no error. (4) Appeal, accordingly, dismissed - observations by Handley JA concerning the need to prove by evidence the needs of claimants under the Act.

Family Provision Act 1982, s7.