Keep v Bourke [2012] NSWCA 64

Court of Appeal Supreme Court New South Wales Medium Neutral Citation: Keep v Bourke [2012] NSWCA 64 Hearing dates: 9 March 2012 Decision date: 05 April 2012 Before: Macfarlan JA (at [1]); Barrett JA (at [6]); Tobias AJA (at [56]) Decision: 1. Appeal allowed. 2. Vary order 1 made by the court below by substituting "$175,000" for $200,000". 3. Vary order 3 made by the court below by omitting all words after "after" and substituting "5 April 2012". 4. That the respondent pay the appellants' costs of the appeal. [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: SUCCESSION - application for provision under Part 3 Succession Act 2006 - testatrix with three adult children leaves whole estate to two of them equally - long estrangement between third child and testatrix - third child obtains at first instance an order giving her a legacy of roughly one-third of estate - whether primary judge correctly applied jurisdictional or "first stage" test - whether discretion miscarried at "second stage" Legislation Cited: Succession Act 2006, ss 59, 60(2) Cases Cited: Durham v Durham [2011] NSWCA 62 Foley v Ellis [2008] NSWCA 288 Ford v Simes [2009] NSWCA 351 Hampson v Hampson [2010] NSWCA 359 House v The King [1936] HCA 40; (1936) 55 CLR 499 Pontifical Society for the Propagation of the Faith v Scales [1962] HCA 19; 107 CLR 9 Singer v Berghouse [1994] HCA 40; (1994) 181 CLR 201 at 208-209 Vigolo v Bostin [2005] HCA 11; 221 CLR 191 Category: Principal judgment Parties: Gwendolene Anne Keep and Graham Christopher Keep - First and Second Appellants Marion Gay Bourke - Respondent Representation: R D Wilson - Appellants J A D Needham SC/ R E Quickenden - Respondent Hancock Alldis & Roskov - Appellants Nash Allen Williams & Wotton - Respondent File Number(s): 2011/00090701 Decision under appeal Citation: Bourke v Keep [2011] NSWSC 88 Date of Decision: 2011-03-01 00:00:00 Before: Macready AsJ File Number(s): 2011/00090701