Australia, Sept. 9 -- New South Wales Land and Environment Court issued text of the following judgement on Aug. 8:

WARD P: I agree with Free JA.

KIRK JA: I agree with Free JA.

FREE JA: This appeal involves a challenge to an order for family provision made by the primary judge under s 59 of the Succession Act 2006 (NSW) (Succession Act) in favour of the respondent, Justine Bosschieter, from the estate of her grandmother, Margaret Howitt.

As is conventional in matters of this kind, after introducing the deceased and her relatives I will refer to them by their first names. In doing so I do not intend any disrespect to the individuals concerned.

Summary of the issues raised by the appeal and appropriate disposition The appeal raises, in substance, three issues. The first is whether the primary judge erred in concluding that Justine was an eligible person on the basis that she was partly dependent on Margaret in the first two years of her life. The second is whether the primary judge erred by failing properly to apply s 59(1)(b) of the Succession Act (requiring that there be factors warranting the making of an application by Justine), including by failing to consider the submissions advanced by the appellant. The third is whether the primary judge erred in concluding, for the purposes of s 59(1)(c), that adequate provision for the proper maintenance, education or advancement in life of Justine had not been made by Margaret's will and that, pursuant to s 59(2), an order ought be made for further provision for Justine out of the estate. For the reasons which follow, on the first two points no error is established. On the third point error is established. No order for family provision should have been made.

Factual background Margaret was born in 1928. She was married to Allan Howitt, who died in March 2017. Margaret and Allan had four children - Denise (born in 1950, now Denise Brauman), Phillip (born in 1952), Jennifer (born in 1955, now Jennifer Rollo) and David (born in 1955).

At the time of her death Denise had eight grandchildren. The eldest of those is Justine, who was born to Denise in October 1971 when her mother, Denise, was 20 and unmarried. Those circumstances assume some significance for the disposition of Justine's claim for a family provision order. Although Margaret had initially wanted Denise to give the baby up for adoption, she came to support Denise's decision to keep Justine. She also allowed Denise to bring Justine back from hospital to the family home in Forestville (Forestville House). Denise and Justine stayed in the Forestville House, at that time, for about two and a half years. The findings of the primary judge regarding that period in Justine's life, which provided the foundation for the conclusion that Justine was an eligible person for the purposes of the relevant provisions of the Succession Act, are addressed in more detail below.

*Rest of the document can be viewed at: (https://www.caselaw.nsw.gov.au/decision/19882f5762b85679b0be92a3)

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