Evans v Levy [2011] NSWCA 125

Court of Appeal Supreme Court New South Wales Medium Neutral Citation: Evans v Levy [2011] NSWCA 125 Hearing dates: 27 April 2011 Decision date: 24 May 2011 Before: Campbell JA at [1]; Young JA at [2]; Sackville AJA at [79] Decision: Appeal dismissed with costs. [Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.] Catchwords: WILLS AND PROBATE- Family Provision Act s 9- purpose of section- factors warranting the making of provision- whether the primary judge erred in finding there were not sufficient factors by not taking into account the contributions of the appellant and the relationship between the appellant and the deceased- the principles in House v The King are the test for whether the judge erred- appellant failed to demonstrate error in the judge's reasons.

WILLS AND PROBATE- Family Provision Act s 32- the making of a s 32 statement by a testator referring to a person is not an implicit acknowledgment of a legitimate claim by that person on his or her bounty- such a statement only indicates that the testator expected the person to make a claim.

WILLS AND PROBATE- Family Provision Act- who is claimant on testator's bounty?- testator left estate to remote relatives and nothing to step daughter- step daughter asset rich but on partial pension- the protection of public funds is not a purpose of Family Provision legislation although the Court should not disregard the interest of the public in public funds- the testator's views should be respected unless they are contrary to community expectations. Legislation Cited: Family Provision Act 1982, ss 6, 7, 9, 32 Cases Cited: Allen v Manchester [1922] NZLR 218 Commercial Union Assurance Co of Australia Limited v Ferrcom Pty Ltd (1991) 22 NSWLR 389 Durham v Durham [2011] NSWCA 62 Foley v Ellis [2008] NSWCA 288 Hill v Buckley [2008] NSWSC 1374 House v The King [1936] HCA 40; 55 CLR 499 Palmer v Dolman [2005] NSWCA 361 Re Fulop (dec'd) (1987) 8 NSWLR 679 Walker v Walker (Young J, 17 May 1996, unreported) Whitmont v Lloyd (Bryson J, 31 July 1995, unreported) Category: Principal judgment Parties: Maria Evans (Appellant) Francis Laurence Levy (Respondent) Representation: Counsel: G P McNally SC (Appellant) J P Lo Schiavo (Respondent) Solicitors: Matthews Dooley & Gibson (Appellant) Forbes-Smith & Company (Respondent) File Number(s): CA 2009/288018 Decision under appeal Jurisdiction: 9111 Citation: Evans v Levy [2010] NSWSC 504 Date of Decision: 2010-05-21 00:00:00 Before: McLaughlin AsJ File Number(s): SC 1951/09