COOK AND Anor v COOK [1997] NSWCA 79

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

MASON P, MEAGHER and HANDLEY JJA 14 October 1997, 14 October 1997

[1997] NSWCA 79

FAMILY PROVISION — adult daughters — parents divorced — no relationship with father — orders made

The appellants were the adult daughters of the deceased. He made no provision for them in his will leaving the whole of his estate worth approximately $622,000 to his only son, the respondent executor. Their mother left the matrimonial home in 1962 with the daughters and entered into an adulterous relationship. This put an end to the father's relationship with the older daughter and prevented him forming a relationship with the younger. There had been several attempts by the older daughter and her father to re-establish their relationship but these proved unsuccessful largely because of the father's conduct. The Master dismissed the daughters' claims for provision from the estate.

HELD: Neither party has been totally responsible for the breakdown of the relationship between the father and the elder daughter, or for the absence of any relationship with the younger daughter. The testator should have made provision for the daughters in his will, providing more for the younger, as she was in greater need. The Master was in error in dismissing their claims.

The appeals were allowed and orders made in favour of the daughters.

Handley JA Ex tempore

This is an appeal by two adult daughters from a decision of Master McLaughlin who dismissed their claims for provision out of their father's estate under the Family Provision Act.

Their father died on 17 November 1994 aged 82. He left a will made in September 1994 in which he appointed his son, Geoffrey, sole executor and left him substantially the whole of his estate. There were some modest pecuniary and specific legacies which can be disregarded for present purposes.