WILSON and ANOR v WRIGHT [1995] NSWCA 520

WILSON and ANOR v WRIGHT

THE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL

KIRBY P, HANDLEY and SHELLER JJA 3 November 1994, 21 March 1995

FAMILY PROVISION — PARTIES — QUANTUM The appellants appealed against the inadequacy of orders under the Family Provision Act for legacies of $10,000 each out of their mother's actual and notional estate, and against the dismissal of their claims against their father's estate — The respondents were their sister and her husband — Their father died on 6 June 1989 leaving his estate to their mother who died on 4 August 1989 leaving her estate to the daughter — father and mother gifted their principal asset a house to the daughter on 5 September 1987 — sons had been wholly of partially dependent on parents for accommodation — Held: (1) Orders made to ensure that both estates properly represented before Court. (2) Orders under appeal were manifestly inadequate and must be set aside. (3) Further evidence should be received, Warr v Santos (1973) 1 NSWLR 432 applied. (4) There was no evidence of the respondents' financial positions. (5) Appeals allowed and orders made for increased provision for each appellant.

Kirby P I agree with Handley JA.

Handley JA These are appeals by Leslie and Colin Wilson against the inadequacy of orders under the Family Provision Act made by Master Windeyer out of their mother's actual and notional estate, and against the dismissal of their claims against their father's estate. The appellants were 62 and 59 at the date of trial. The respondents are their sister and her husband.

The father died on 6 June 1989 leaving a will dated 10 September 1987, probate of which was granted to the appellant Colin on 13 June 1990. The father left the whole of his estate to his wife. The Master found that his actual estate was worth about $10,000. The mother died on 4 August 1989 leaving a will dated 31 January 1972 giving her whole estate to the first respondent. Probate of her will was granted in Queensland to her son-in-law, the second respondent and the husband of the first respondent. There has been no reseal in New South Wales. Colin obtained a grant of administration in this State "for the purposes only of an application being made under the Family Provision Act 1982 by him". A grant in this form is inappropriate and ineffective since the same person cannot be both plaintiff and defendant in the one proceeding. The value of the mother's actual estate was not established with any precision.