Bindoff v The Trust Company (Australia) Ltd - [2016] NSWSC 1100

Supreme Court

New South Wales

Medium Neutral Citation: Bindoff v The Trust Company (Australia) Ltd; Estate of the late Everitt Joseph Griffiths [2016] NSWSC 1100
Hearing dates: 21 September 2015 - hearing; 12 & 26 October 2015 - orders made in chambers; and 31 March 2016 – orders for supplementary submissions made in chambers.
Date of orders: 16 August 2016
Decision date: 16 August 2016
Jurisdiction: Equity
Before: Slattery J
Decision:
Adequate provision not made for plaintiff under the deceased’s will. Plaintiff awarded a legacy of $1.36 million in addition to the Woodside Shares already given to her under the will.

Catchwords: SUCCESSION – family provision – claim by adult daughter – substantial estate – deceased had two daughters – after a number of specific gifts most of estate given to older daughter and the children of the older daughter – younger daughter brings claim under Succession Act, s 59 – claimant conceded to be an eligible person under Succession Act, s 57 - whether adequate provision made for the maintenance and advancement in life of the plaintiff under the will of the deceased – if not, what provision should be made for the plaintiff.
Legislation Cited: Court Suppression and Non-publication Orders Act 2010 (NSW)
Succession Act 2006 (NSW), ss 57, 59
Cases Cited: Andrew v Andrew (2012) 81 NSWLR 656
Carey v Robson [2010] NSWCA 212
Drury v Smith [2012] NSWSC 1067
Evans v Levy [2011] NSWCA 125
Friend v Brien and Anor [2014] NSWSC 613
Salmon v Osmond [2015] NSWCA 42
Slack v Rogan and Anor [2013] NSWSC 522
Smith v Johnson [2015] NSWCA 297
Singer v Berghouse (No. 2) (1994) 181 CLR 201
Singh & Anor v Singh and Ors [2015] NSWSC 1457
Taylor v Farrugia [2009] NSWSC 801
Tchadovitch v Tchadovitch [2010] NSWCA 316
Category: Principal judgment
Parties: Plaintiff: Helen Patricia Bindoff
Defendant: The Trust Company (Australia) Ltd
Representation:
Counsel:
Plaintiff: K. Morrissey; L. Clarke
Defendant: L. Ellison SC
Solicitors:
Plaintiff: George Szabo, Szabo & Associates Solicitors
Defendant: David Robert Samuel Creais, Bartier Perry

File Number(s): 2014/318020
Publication restriction: No

Judgment

Clare Bergen and Nancy Kearney met at school. They became lifelong friends. After leaving school, marrying and having five children, Nancy developed a mental illness, bipolar disorder. As a result, all of Nancy’s children, including the plaintiff in these proceedings, Helen, were placed in an orphanage. Helen, the youngest, was then only nine months old. When Helen was three Nancy committed suicide. Nancy’s widower, Adrianus Taalman, took his three older children into a new marriage in Adelaide. Helen and her older sister Susan remained in the orphanage. But Clare’s loyalty to her childhood friend Nancy endured. In 1963 she and her husband, Everitt Griffiths, intervened and adopted Helen and Susan.
Clare had married Everitt Griffiths in 1946. By 1963 and after 17 years of marriage they had no children together. At the time of the adoption, Everitt was 46 and Clare 38. Helen was 5 and Susan 7. Everitt and Clare commenced to bring up…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2016] NSWSC 1100
Decision Date: 16 August 2016

CaseChat Overview and Summary

The case of Bindoff v The Trust Company (Australia) Ltd involves a dispute regarding family provision claims under the Succession Act. The plaintiff, an adult daughter, challenges the distribution of her deceased father's estate, contending that she has not been provided for adequately. The deceased had made specific gifts to both daughters but left the bulk of his estate to his older daughter and her children. The defendant, The Trust Company (Australia) Ltd, as the executor of the deceased's will, is responsible for administering the estate. The plaintiff accepted that she is an eligible person under section 57 of the Succession Act but argued that the will did not make adequate provision for her maintenance and advancement in life under section 59.

The central legal issue before the court was whether the deceased had made adequate provision for the plaintiff's maintenance and advancement in life, as required by section 59 of the Succession Act. The court had to examine the specific gifts and the overall distribution of the estate, considering the deceased's intentions and the statutory requirements. The plaintiff's claim necessitated an analysis of the estate's value, the deceased's assets, and the extent to which the plaintiff's needs were met by the provisions in the will.

In its decision, the court found that the deceased had not made adequate provision for the plaintiff. The specific gifts were deemed insufficient to meet the plaintiff's reasonable financial needs, given the substantial nature of the estate. The court emphasised the importance of considering the overall circumstances and the reasonable expectations of the plaintiff in light of the deceased's capacity to provide. Consequently, the court ordered that a portion of the estate be transferred to the plaintiff to ensure she is provided for adequately. This decision underscores the court's role in balancing the testator's intentions with the statutory rights of eligible family members.

Orders