SAMSLEY v BARNES

SAMSLEY v BARNES - [1990] NSWCA 161 - NSWCA 1990 case summary — Zoe

Parties

Applicant/Plaintiff:

SAMSLEY

Respondent/Defendant:

BARNES

Cases Cited (15)

FAMILY PROVISION - claim by persons eligible by statute - proper approach to

whether appropriate to adopt presumptions in respect of persons in particular relationships to the deceased eg adult able-bodied sons or persons in de facto relationships - Hunter v Hunter and Ors (1987) 8 NSWLR 573 discussed. Gorton v Parks (1989) 17 NSWLR 1 approved and Anderson v Teboneras [1990] VR 519 disapproved by Kirby P.

It was in such a society, quite different from that of today, that courts developed notions about the meaning of "proper", "adequate" and "in all the circumstances of the case" where the claimant for provision was in a class considered unmeritorious, especially as their claim was measured against the testator's right to dispose of the estate as he or she thought fit. Hence a number of decisions suggested that adult able bodied sons, without encumbrances who were able to maintain themselves were normally (though not invariably) to be denied orders under the former Act. See Allardice and Anor v Allardice and Ors [1911] AC 730, 732; Re Fuller (1917) 17 SR (NSW) 348, 350. It was in such social circumstances that it was considered relevant to a claim by an adult daughter that she had left home against the wishes of her parents. See Re Hallahan (1918) 18 SR (NSW) 138; 35 WN (NSW) 51. See also Re Harris (1918) 18 SR (NSW) 303; 35 WN (NSW) 122. In the same circumstances, it was common to see the right of the widow described as "paramount". See eg Re F W Crowe (1935) 35 SR (NSW) 547; 52 WN (NSW) 187. See also Re the Will of Gilbert (1946) 46 SR (NSW) 318, 322; 63 WN (NSW) 176, 178.

These are the considerations which lay behind my suggestion in Hunter v Hunter and Ors (1987) 8 NSWLR 573, 579 that the former law about "adult sons" should be seen now as replaced by a law appropriate to the society of today where adult sons, daughters and other persons enjoy quite different relationships with those who become testators. Attention was drawn in this appeal to the remarks of Ormiston J in Anderson v Teboneras [1990] VR 527, 538 where his Honour criticised my suggestion that Gibbs J in Huahes v National Trustees Executors and Agency Co of Australasia Limited (1979) 143 CLR 134, 147 had discouraged the use of the line of authority, which formerly expressed approaches to be taken to claims of "able-bodied adult sons". With every respect to Ormiston J, I adhere to what I said in Hunter. I believe it is borne out by a careful reading of the observations of Gibbs J in the case cited. In Hunter it was agreed to by

It is not appropriate, as it seems to me, to judge harshly the suggested disqualification of the godson. Competing moral claims may properly be taken into account in deciding whether less than what would otherwise be proper "maintenance" may be considered adequate provision in the circumstances. See eg In re Buckland [1966] VR 404, 414. But to take into account moral disapprobation of the godson or disapproval of his unemployment, mode of life, relation with a "mistress" or involvement in drugs would cause the fresh exercise of discretion in this Court itself to miscarry. Such considerations must therefore be put out of mind. Conclusion: inadequate provision As I said in Hunter (above, 575) the adjectives "adequate" and "proper" (qualifying the provision that is impliedly required) and the purposes ("maintenance, education or advancement in life") for which such provision is considered, provide the Court with the boundaries within which its task is to be performed. The determination of what is "adequate" or "proper" involves the Court in a task of evaluation. Inescapably, a judge's notion of the adequacy and propriety of the allowance made (if any) will depend upon his or her preconceptions of what a just testator, with the knowledge which the deceased person had at the time of death of the claims of any "eligible person", ought to have done to provide for that person's "maintenance, education or advancement in life".

(1960) 104 CLR 124

(1985) 2 NSWLR 65

(1987) 8 NSWLR 573

(1989) 17 NSWLR 1

(1979) 143 CLR 134

(1989) 17 NSWLR 1

(1979) 144 CLR 513

(1986) 161 CLR 513

(1985) 2 NSWLR 475

(1985) 2 NSWLR 65

At a glance

Court

Decision date

Before

Source

Judgment (21 paragraphs)

Parties

Cases Cited (15)