Palmer v Dolman; Dolman v Palmer [2005] NSWCA 361

New South Wales Court of Appeal

CITATION: Palmer v Dolman; Dolman v Palmer [2005] NSWCA 361

HEARING DATE(S): 18/10/05

JUDGMENT DATE: 12 December 2005

JUDGMENT OF: Ipp JA at 1; Tobias JA at 125; Basten JA at 126

DECISION: (A) As regards the executor's appeal (CA 40456/05) (i) The executor's appeal is dismissed (ii) Mrs Dolman's costs are to be assessed on a party and party basis and the executor's costs on an indemnity basis (iii) The costs so identified are to be paid out of the estate (B) As regards Fiona Dolman's appeal (CA 40564/05) (i) The appeal is upheld (ii) The order made by the Master dismissing her claim and the costs order he made are set aside (iii) Fiona Dolman is to receive a lump sum payment by way of a legacy of $655,000 from the estate (iv) Otherwise the provisions of the will remain unaltered (v) The estate is to pay Fiona Dolman's costs of the hearing before the Master and the costs of her appeal (vi) Fiona Dolman's costs are to be assessed on a party and party basis (vii) The executor's costs are to be paid out of the estate on an indemnity basis (viii) The executor of the estate is to have a certificate under the Suitors' Fund Act 1951 (NSW) if otherwise qualified.

CATCHWORDS: SUCCESSION - no provision made in estate of deceased for first wife - fraud established on part of deceased at time of property settlement in divorce proceedings with first wife - deceased marrying again - relevance of fraud - SUCCESSION - no provision made in estate of deceased for daughter - Singer v Berghouse two stage approach applied - consideration of 'the totality of the relationship' in determination of 'jurisdictional question' - relevance of concepts 'moral duty' and 'moral claims' in determining the 'jurisdictional question ' - effect of estrangement between parent and child - parent's lack of generosity in providing financial support to child - Gorton v Parks affirmed. - EVIDENCE - standard of proof in civil case where fraud sought to be inferred from circumstantial evidence - Bradshaw v McEwans applied - approach in civil case in the determination as to whether circumstantial evidence leads to the inference of fraud. D