Blendell v Blendell; Blendell v Blendell [2020] NSWCA 154
Hearing dates:
4 December 2019
Decision date:
24 July 2020
Before:
Meagher JA at [1]; Gleeson JA at [76]; Leeming JA at [77]
Decision:
(1) In proceeding 2019/207900, appeal dismissed with costs.
(2) In proceeding 2019/207924, appeal dismissed with costs.
Catchwords:
SUCCESSION – Family provision – Appeal against order for provision in favour of two adult children – Where whole of estate left to deceased’s husband – Where failure by one applicant to produce documents relevant to that applicant’s financial circumstances – Where evidence as to value of other applicant’s assets unreliable – Whether failure to comply with notice to produce a basis for rejecting application for provision – Whether Court had sufficient evidence of each applicant’s financial position – Whether primary judge had regard to 50 year marital relationship between deceased and her husband as sole beneficiary, and deceased’s decision to leave all of her estate to him – Appeal dismissed.
MEAGHER JA: The appellant, Michael Blendell, is the husband of Noeline Blendell,…
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
AGLC
Blendell v Blendell [2020] NSWCA 154
Case
[2020] NSWCA 154
Decision Date
CaseChat Overview and Summary
The appeal concerned an application for provision from the estate of the deceased, brought by two adult children. The deceased had left her entire estate to her husband, who was the sole beneficiary under the will. The applicants sought provision from the estate, and the primary judge had made orders in their favour. The husband appealed these orders.
The central legal issues before the Court of Appeal were whether the primary judge had sufficient evidence of each applicant's financial position to make an informed decision, and whether the failure by one applicant to produce relevant documents concerning their financial circumstances constituted a basis for rejecting their application for provision. The Court also considered whether the primary judge had adequately had regard to the deceased's decision to leave her entire estate to her husband, with whom she had shared a 50-year marital relationship.
The Court of Appeal found that despite the failure of one applicant to produce all requested documents, the primary judge had still been able to form a sufficient view of their financial position. Similarly, the evidence regarding the other applicant's assets, while perhaps not entirely free from doubt, was deemed sufficient for the primary judge's assessment. The Court held that the primary judge had properly considered all relevant factors, including the deceased's testamentary intentions and the long marital relationship, when making the provision orders.
Consequently, the appeals were dismissed with costs.
Orders
Orders of the court
(1) In proceeding 2019/207900, appeal dismissed with costs.
(2) In proceeding 2019/207924, appeal dismissed with costs.