KRISTL v WALLINGTON [1995] NSWCA 250

KRISTL v WALLINGTON

SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL

PRIESTLEY, HANDLEY JJA and HODGSON AJA 29 May 1995, 29 August 1995

[1995] NSWCA 250 FAMILY PROVISION ACT — ELIGIBLE PERSON

FAMILY PROVISION ACT — ELIGIBLE PERSON — s9(1) FACTORS WHICH WARRANT MAKING OF APPLICATION — WHETHER TRIAL JUDGE HAD ERRED IN EXERCISE OF DISCRETION — appellant brings proceedings under Family Provision Act for provision from estate of divorced husband — relationship between appellant and deceased had lasted with interruptions for 7 years — after divorce appellant sought to have nothing to do with deceased — no financial claim on deceased and no application for property order under Family Law Act before his death — deceased left his estate to his 3 sons in equal shares — none of the appellant or three sons well off- trial judge finds at least one of the sons in necessitous circumstances — trial judge holds that by current community standards appellant not a person the deceased should have had in mind when making his will and there were no factors warranting the making of s9(1) application — further the estate was not large enough to permit provision for the deceased's three sons and the appellant. Held:- appellant cannot establish error in the trial judge's exercise of discretion — the result reached by the trial judge is not on the facts

unreasonable and plainly unjust — recognised need for appellate courts to exercise restraint in these type of cases.

ORDERS

Appeal dismissed with costs.

Priestley JA I agree with Handley JA, for the reasons he gives, that the appellant has not shown in this appeal that the exercise of discretion by the trial judge, upon the basis of unchallenged factual findings, miscarried in any material way.

The appeal in my opinion should be dismissed with costs.

Handley JA This is an appeal by the divorced wife of the late Cyril Wallington (the deceased) from orders of Young J dismissing with costs her application under the Family Provision Act (the Act) for provision out of her former husband's estate. The deceased died on 31 January 1992 aged seventy one leaving a will made on 8 October 1990 appointing the respondent, one of his sons, sole executor and leaving his estate to his three sons in equal shares.