Nicholls v. Hall & Ors [2007] NSWCA 356

New South Wales Court of Appeal

CITATION: Nicholls v. Hall & Ors [2007] NSWCA 356

HEARING DATE(S): 31 October 2007

JUDGMENT DATE: 13 December 2007

JUDGMENT OF: Mason P at 1; Hodgson JA at 1; McColl JA at 1

DECISION: 1. Appeal allowed. 2. Orders below set aside, and in lieu thereof order that the estate of the deceased be divided between the daughters of the deceased and the appellant in the proportions of two-sevenths to each daughter and one-seventh to the appellant. 3. Order that the costs of the respondents below and on appeal be paid out of the estate of the deceased on an indemnity basis. 4. Order that the costs of the appellant of the proceedings below be paid out of the estate of the deceased. 5. Order that the respondents pay the appellant's costs of the appeal, and have a certificate under the Suitors' Fund Act if otherwise entitled, and that they be reimbursed for these costs from the estate of the deceased.

CATCHWORDS: SUCCESSION - FAMILY PROVISION AND MAINTENANCE - Moral obligation or moral claim - Inadequate provision for proper maintenance - What is "adequate" and what is "proper" to be assessed having regard to objective circumstances, not just circumstances known to deceased - Relevance of "bare paternity".

LEGISLATION CITED: Family Provision Act 1982 s.9

Fox v. Percy (2003) 214 CLR 118 Gorton v. Parks (1989) 17 NSWLR 1 CASES CITED: Hughes v. Hughes (NSWCA 6 June 1989) Kleinig v. Neal (No.2) [1981] 2 NSWLR 532 Pontifical Society for the Propagation of the Faith v. Scales (1962) 107 CLR 9 Singer v. Berghouse (No.2) (1994) 181 CLR 201

David Norman Nicholls - appellant/applicant Deborah Anne Hall - 1st respondent/opponent Gregory Robert Hall - 2nd respondent/opponent PARTIES: Donna Louise Robinson - 3rd respondent/opponent Gregory James Robinson - 4th respondent/opponent Deanne Elizabeth Day - 5th respondent/opponent Colin William Day - 6th respondent/opponent