NSW Caselaw
New South Wales Court of Appeal
CITATION: McCallum & Anor v Johnston & Anor [2005] NSWCA 400
HEARING DATE(S): 10 October 2005
JUDGMENT DATE: 18 November 2005
JUDGMENT OF: Mason P at 1; McColl JA at 2; McClellan CJ at CL at 3
DECISION: 1. Appeals dismissed; 2. Appellants to pay the respondents' costs
CATCHWORDS: APPEAL - will and estate - whether trial judge's discretion miscarried - whether failure to properly assess a beneficiary's income
LEGISLATION CITED: Family Provision Act 1982
Golosky & Anor v Golosky unreported, Court of Appeal, 5 October 1993 CASES CITED: Singer v Berghouse (1994) 181 CLR 201 Vigolo v Bostin (2005) 79 ALJR 731
David Robert McCallum (Appl) Stuart Alexander McCallum (Appl) PARTIES: Joan Elizabeth Johnston (1R) Helen Margaret Attwell (2R)
FILE NUMBER(S): CA 40162/05
J W Wilson SC (Appls) COUNSEL: J S Drummond (Resp)
Francis Kelly and Grant by their city agents SOLICITORS: Turner Whelan (Appls) Harris Lieberman Boyd (Resp)
LOWER COURT JURISDICTION: Supreme Court
LOWER COURT FILE NUMBER(S): 3923/02
LOWER COURT JUDICIAL OFFICER: Macready AsJ
IN THE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL 40162/05
MASON P McCOLL JA McCLELLAN CJ at CL
FRIDAY 18 NOVEMBER 2005 McCALLUM & ANOR v JOHNSTON & ATTWELL Judgment 1 MASON P: I agree with McClellan CJ at CL. 2 McCOLL JA: I have had the benefit of reading McClellan CJ at CL's judgment in draft. I agree with his Honour's reasons and the orders he proposes. 3 McCLELLAN CJ at CL: This is an appeal from the decision of Macready AsJ under the Family Provision Act 1982 in relation to the Estate of Duncan David McCallum who died on 29 September 2001 at the age of eighty-six years. His wife had previously passed away. He was survived by their five children. 4 Macready AsJ made orders increasing the entitlement of the deceased's two daughters, Joan Johnston and Helen Attwell, from that provided in the deceased's will. His Honour provided an additional legacy for Joan of $250,000 and an additional legacy for Helen of $175,000. In this appeal two of the appellant's three sons, David and Stuart, challenge those orders.
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