Widow appeals family provision orders

Neale v Neale [2015] NSWCA 206

After a decision has been made by a judge of the Supreme Court of New South Wales, the parties involved in the litigation have an option to consider whether there may have been an error by the judge or a miscarriage of justice. If a party thinks there are grounds, they may apply to the Court of Appeal for assistance to set aside or vary the orders of the first judge.

In the decision of Neale v Neale [2015] NSWCA 206, the widow of the deceased filed an appeal to set aside a judgment given 12 months previously. Three Court of Appeal judges sat on the bench to review the decision.

The facts of the case were that the deceased left his whole estate to his surviving widow. He did not make any provision for his children from a prior marriage.

The judge who heard the matter in the first instance in the Supreme Court of New South Wales made orders for provision for the children of the deceased. The children were 43 and 44 years of age and each had young children of their own. Each had a child or children with medical conditions and physical disabilities which caused expense and distress for them and their families. The judge considered that it was not unreasonable for the father’s estate to be looked to for assistance in meeting the costs of caring for children with special needs.

It was also considered relevant that the children had previously forgone an interest in their grandmother’s estate in favour of their father. The father had been unsatisfied with the amount left to him from his own mother’s estate, and a deed of family arrangement had been entered into whereby the children took less of the grandmother’s estate in favour of allowing their father to receive greater provision. The father made representations to the children that he would provide for them in his will as part of the process of settling the dispute about the grandmother’s estate.

The judge at first instance said the children had a reasonable expectation that they would receive something from their father’s estate particularly on the basis of what the father had said about his testamentary intentions. The evidence of the children was that they were told by their father and the widow to “wait their turn”, and that “they would be looked after”.

The judge in the first decision considered the effect any orders for provision for the children may have on the widow. He found the widow was relatively financially secure and the legacies he ordered for the children would not materially affect her. The judges on appeal agreed with that finding.

The Court of Appeal judges said, “The widow’s circumstances must be balanced against the circumstances, needs and moral claims of the claimants and other beneficiaries.”

All three judges agreed that the provision made for the children in the first decision was appropriate and the judge did not make any errors. The widow lost the appeal and was ordered to pay the children’s legal costs, which were significant.

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