HARVEY v KECHAGIAS [1997] NSWCA 138

HARVEY v KECHAGIAS

SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL

MEAGHER, HANDLEY and BEAZLEY JJA 10 July 1997, 3 October 1997 [1997] NSWCA 138

FAMILY PROVISION ACT — provision for adult daughter — quantum — need for accommodation — discretion — estate inadequate — entitlement and quantum to be considered at date of order

The appellant claimed against the estate of her late father under the Family Provision Act. The only substantial asset of the estate was the house of the deceased valued at $210,000 but the net estate, because of expenses, was worth only $155,000. The will provided for half the estate to pass to the children of the appellant and the other half to the children of the respondent, her brother. The Master awarded one third of the estate to the appellant, leaving one third for her children and one third for the children of the respondent.

The daughter challenged the award as too low, and outside the range of the Master's discretion.

HELD: Dismissing the appeal by Meagher and Handley JJA, Beazley JA dissenting: (1) Per Meagher and Handley JJA: No error had been shown in the Master's exercise of discretion. All the beneficiaries had physical, mental or psychological difficulties. (2) Per Meagher JA: Although the appellant cared for the deceased for a period between 1980 and his return to Greece in 1987, she benefited by living in the house of the deceased rent free for many years. (3) Per Handley JA: An order should not be made for the appellant to receive the whole estate as this would not enable her to retain the deceased's house or buy another. The appellant's income from Social Security did not enable her to borrow monies on mortgage to pay off the estate liabilities. (4) Per Handley JA: The Court should not encourage appeals in cases where the resources of the estate cannot accommodate all the claims against it, and where the only challenge to the award is one of quantum. Accordingly the appellant should not receive her costs of the appeal. (5) Per Beazley JA (dissenting): The appellant was a natural object of testamentary recognition by the deceased, and the award of the Master was inadequate having regard to her needs.