This case was heard in the NSW Supreme Court (Court of Appeal)
on 17 July 2015 before Basten JA, Macfarlan JA and Gleeson JA and
concerned an appeal from the decision of Lindsay J.
The case concerned a dispute between the deceased's widow
(the Appellant) and his two children from a former marriage (the
Respondents). The deceased had died leaving the entirety of his
$1.7 million estate to his widow, effectively excluding the
Respondents from any benefit under the will. The Respondents had
commenced proceedings in November 2013 and were awarded a legacy of
$100,000 each pursuant to their successful family provision claim
under Part 3.2 of the Succession Act 2006 (NSW). The
Appellant brought the current proceedings seeking to have the
legacies set aside and costs orders made against the
There were 5 appeal grounds identified for determination by the
Appeal Court, the more significant of which were the 3rd
and 4th grounds concerning the circumstances relating to
the Respondent's legacy, namely the dispute over another will
being that of the deceased's mother, the Respondent's
grandmother (the Grandmother). Of particular note was the Appeal
Court's consideration of the question as to whether a family
member (grandchild respondents) forgoing an entitlement that could
be viewed as part discharge of moral obligations (to their father,
the deceased) and filial affection for a sick family member (their
father, the deceased), could displace an expectation (by the
grandchildren respondents) to a legacy in the will of that family
member (their father, the deceased).
The Grandmother left an estate of $1.2 million out of which her
will provided for legacies of $100,000 each to her sons, (the
deceased and the deceased's brother), and the balance
apportioned equally between her four grandchildren two of whom were
the Respondents. A dispute which arose over this will was settled
by a "deed of arrangement" under which the grandchildren
(including the Respondents) forewent their entitlement in favour of
The issue for consideration on appeal was whether or not there
was (as the trial judge found) a representation made to the
Respondents by the deceased to the effect that he would make a
provision for them in his own will. A further closely related issue
was whether or not the Respondents' act of foregoing their
entitlement under the Grandmother's will gave rise to an
expectation that they would receive something from the
deceased's estate (something the trial judge also found).
The Appellant alleged that, there was a lack of evidence that
the deceased had made any representations, but lack of counter
evidence left open for the trial judge to make the findings that a
representation had been made.
Furthermore, in relation to the expectation, the Appeal Court
rejected the Appellants arguments that the Respondents' were
motivated to forego their legacy, (as it would be spent on medical
costs to treat their father's illness) which was a motive to
discharge a moral obligation based on filial affection: in other
words, the children had no expectation.
In his judgment for the Court Basten JA observed that
No doubt filial affection was one
reason why the respondents agreed to the settlement of the
deceased's claims to part of his mother's estate. However
the contributions of the respondents cannot be seen purely in terms
of the discharge of an existing moral obligation...that provides no
absolute defence to a later claim by the offspring on a
Basten JA also noted that the expectation was that of forming
obligations or responsibilities such as those owed by the deceased
to the Respondents and which the Court was required to consider,
and was different from estoppel, where the person must establish
they relied upon an unfulfilled expectation and suffered
So, notwithstanding the deceased's children had been
motivated by a moral obligation, their expectation to receive
adequate provision under their father's will, was not
exhausted. The Appeal was dismissed.
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Sect.117 can deal with false statements and knowingly making false allegations of violence could justify a costs order.
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