Alexander v Jansson [2010] NSWCA 176

New South Wales Court of Appeal

CITATION: Alexander v Jansson [2010] NSWCA 176

HEARING DATE(S): 22 June 2010

JUDGMENT DATE: 27 July 2010

JUDGMENT OF: Basten JA at 1; Handley AJA at 2; Brereton J at 3

DECISION: Appeal allowed in part

CATCHWORDS: SUCCESSION – family provision and maintenance – appeals – where primary judge permitted elderly plaintiff/respondent's affidavit evidence to be read notwithstanding that she did not attend having been required for cross-examination – where plaintiff resided in remote location and medical evidence that travel was undesirable – where proposed cross-examination would not have resulted in reversal of outcome or reduction of provision below that substituted by Court of Appeal – whether miscarriage of discretion under UCPR r 35.2(3) – held, no miscarriage – where appellant/defendants sought leave to adduce further evidence on appeal to address matters said to have been subject of potential cross-examination at trial –where no sufficient explanation for not calling further evidence at hearing – leave refused – SUCCESSION – family provision and maintenance – principles upon which relief granted – eligibility – dependency – where plaintiff's need for accommodation was satisfied by provision of a house in which deceased owned two-thirds and she owned one-third share – held, plaintiff was partly dependent on deceased – SUCCESSION – family provision and maintenance – failure by testator to make sufficient provision for applicant – "proper provision" – significance of promises made and expectations created by testator – moral obligation – court interferes with dispositions in will only to extent necessary to make adequate provision for claimant's proper maintenance etc – where fee simple granted by primary judge exceeded requirements of adequate provision and life estate would also be excessive, because should plaintiff be compelled or wish to cease to reside there permanently, she would no longer have any reasonable need to remain there and had sufficient assets to relocate – appropriate provision was right to occupy property for purposes of residence and pastoral activities terminable upon death or her earlier ceasing permanently to reside there