NSW Caselaw
New South Wales Court of Appeal
CITATION: Clifford v Mayr [2010] NSWCA 6
HEARING DATE(S): 26 November 2009
JUDGMENT DATE: 10 February 2010
JUDGMENT OF: Campbell JA at 1; Young JA at 150; Handley AJA at 158
DECISION: Appeal allowed. Decision below set aside. Order made for additional provision for the Appellant in nature of specific devise of the family home, subject to a charge for an indexed capital sum for each child, (on terms that the charge may be transferred at Appellant's election to certain other real estate) and subject to certain obligations.
CATCHWORDS: SUCCESSION – FAMILY PROVISION AND MAINTENANCE – Family Provision Act 1982 ss7, 9 – de facto widow with young children – adequate provision for proper maintenance – appellate review of the jurisdictional question – principles on which relief granted – circumstances to be considered – form of order to provide widow with flexibility in housing and also provide capital for children when adult – SUCCESSION – wills, probate and administration – the construction of a will – charges on property of deceased – how burden of charges to be borne – APPEAL AND NEW TRIAL – principle for appellant intervention in decision concerning jurisdiction under Family Provision Act 1982
Conveyancing Act 1919 Family Provision Act 1982 Law of Property Act 1925 (UK) LEGISLATION CITED: Locke King's Act Statute of Wills 1540 Succession Act 2006 Succession Amendment (Family Provision) Act 2008 Trustee Act 1925
CATEGORY: Principal judgment
Barclays Bank Ltd v Gillett [1950] Ch 102 Clifford v Mayr [2009] NSWSC 16 Countess of Bective v Federal Commissioner of Taxation (1932) 47 CLR 417 Foley v Ellis [2008] NSWCA 288 In Re Francis; Francis v Francis [1905] 2 Ch 295 Golosky v Golosky [1993] NSWCA 111; (NSWCA, 5 October 1993, unreported) House v The King (1936) 55 CLR 499 Langley v Langley [1974] 1 NSWLR 46 CASES CITED: Luciano v Rosenblum (1985) 2 NSWLR 65 Marshall v Carruthers [2002] NSWCA 47 O'Loughlin v O'Loughlin [2003] NSWCA 99 Re Butler [1980] Qd R 601 Re Marcuola-Bel Estate; Marcuola-Bel v Thi Ly Tran [2005] NSWSC 1182 Singer v Berghouse (1994) 181 CLR 201 Vigolo v Bostin [2005] HCA 11; (2005) 221 CLR 191 Warren v Coombes (1979) 142 CLR 531 White v Barron (1980) 144 CLR 431
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