ZUKERMAN and ANOR v ZUKERMAN [1996] NSWCA 578

ZUKERMAN v ZUKERMAN SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL

MAHONEY AP, HANDLEY and POWELL, JJA 9 February, 14 March 1996 [1996] NSWCA 578

Testators Family Maintenance — Adult son — Life threatening illness — Cost of medical treatment — Prospects of success of treatment speculative Whether provision should be made — Appropriate form of order

Mahoney AP I agree with the orders proposed by Powell JA and generally with his Honour's reasons.

There has been no appeal against the order made in favour of the deceased's widow. The executors and the present respondent Mr Zuckerman have proceeded upon the basis that effect will be given to that order. Accordingly, such orders as are to be made in favour of the respondent Mr Zuckerman are to be framed upon the basis that the widow's orders take effect according to their terms.

There has been no issue as to the principles to be applied in determining the present application and the appeal.

Having regard to the accepted evidence as to Mr Zuckerman's medical condition, it is in my opinion proper that provision be made enabling him to visit the United States of America to seek the medical treatment in question. The provision to which Powell JA has referred and the costs which his Honour has detailed relate essentially to treatment and costs in respect of one year. It is possible that, beyond the year, further costs may have to be incurred in an endeavour to save his life. It is appropriate that what is to be done in that regard be reserved. Attention before the trial judge was directed primarily and perhaps solely to what was to be done during the next year. But, in my opinion, it is proper to infer that treatment beyond the year may be required. For this reason, it is proper that the Court retain the power to do what is right in this regard. The provisions of the order suggested by Powell JA and in particular the stipulation that the present orders should be interim orders, will assist to this end.