KING v FOSTER [1995] NSWCA 240

KING v FOSTER SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL

KirBY P, SHELLER and COLE JJA 2 November 1995, 7 December 1995

[1995] NSWCA 240

TESTATORS' FAMILY MAINTENANCE — Family Provision- claim by ex-nuptial child-entire estate left to widow — whether failure to provide adequately or at all for child — finding that child had hard life, small assets and no financial security-provision of legacy of $80,000 in nett estate of $537,970 — held (By maj): Provision set aside- application for provision dismissed.

TESTATORS' FAMILY MAINTENANCE — Family Provision — need for accurate findings of assets, income and relationships.

TESTATORS' FAMILY MAINTENANCE — Family Provision — relative positions of spouse and ex- nuptial children considered.

TESTATORS' FAMILY MAINTENANCE — Family Provision — contested claim by ex-nuptial child — claim resisted by widow/executrix — child now aged 45 years, born in 1950 prior to marriage to widow in 1958 — claimant found by primary judge (Brownie J) to have had hard life, with few assets and to be an honest witness — widow acquired matrimonial home (value $130,000) and property in holiday home jointly owned with husband — cash deposits with bank reduced by substantial debts — claimant's assets approximate $34,000 — income derived from selling raffle tickets over long hours — judge finds need, and failure of testator to make adequate provision — awards legacy of $80,000 — Held: (1) (By the Court): Errors of fact finding as to the size of the estate vitiated the exercise of discretion by the primary judge; (2) Notwithstanding the difficulties of doing so, to avoid further costs, the Court of Appeal should re-exercise the discretion; (3) (Sheller JA and Cole JA; Kirby P dissenting): Having regard to the modest size of the assets of the estate and the funds available to earn income for the widow's maintenance, although the claimant established that she had been left without adequate provision, no funds were available in the estate to make provision, and her claim should be dismissed.