THOMAS v THOMAS [1996] NSWCA 529

THOMAS v THOMAS SUPREME COURT OF NEW SOUTH WALES — COURT OF APPEAL

CLARKE JA, SHELLER JA and Simos AJA 1 November 1996

[1996] NSWCA 529

Family Provision Act 1982 — alleged failure of Master to consider whether applicant widow had been left without adequate provision — alleged error of Master in awarding whole of small estate to applicant widow — alleged error of Master in not ordering costs of executors to be paid out of estate.

Held, appellants failed on all grounds - appeal dismissed. Clarke JA. I will ask Simos AJA to give the first judgment.

Simos AJA. This is an appeal from the decision of Master McLaughlin sitting in the Equity Division of the Court, delivered on 28 October 1993. The learned Master was dealing with the application of the respondent to this appeal, the plaintiff in the proceedings below, under the Family Provision Act 1982, for an order making provision for her maintenance and advancement in life out of the estate of her late husband, the late Hugh OwenThomas. The deceased died on 27 March 1992 aged 64. The respondent was the second wife of the deceased.

By his will dated 25 February 1989 the deceased appointed the appellants, his son and daughter of his first marriage, to be executors and trustees of his will, and gave his whole estate to his executors and trustees, upon trust to pay thereout his just debts, funeral and testamentary expenses, and any death or estate duties and then for such of his children as should survive him in equal shares as tenants in common.

The deceased made no provision in his will for the respondent in respect of whom he stated in his will as follows:

5. I record that I have made no provision in this my will for my wife Valma Mary Thomas as she has her own resources and assets and is capable of maintaining herself.

As found by the learned Master, the deceased had been married twice. His first marriage ended in separation and subsequent divorce in about 1978. He had two children of his first marriage being the appellants. He married the respondent on 29 December 1979. There were no children of the marriage. The respondent was born on 24 May 1934 and at the date of the hearing below was aged 59. She had also been married previously and had two sons of her firstmarriage. Her first husband died on 24 March 1978. At the time of her marriage to the deceased she was aged 45 and the deceased was aged 52.