Blendell v Byrne & Ors; The Estate of Noeline Joan Blendell [2019] NSWSC 583
Hearing dates:
18-21 February 2019; 25 February 2019
Date of orders:
20 May 2019
Decision date:
20 May 2019
Jurisdiction:
Equity
Before:
Hallen J
Decision:
See paragraphs [662]-[663]
Catchwords:
SUCCESSION – Wills, probate and administration –Validity of last Will of the deceased made in 2015 – No question of lack of testamentary capacity of the deceased – Lack of knowledge and approval of 2015 Will alleged – Suspicious circumstances rule – Whether the deceased knew and approved of the contents of the 2015 Will – Undue influence alleged – Whether the deceased was coerced by her husband into, and did not intend the disposition of the whole of her estate to him, in the 2015 Will – No dispute that if 2015 Will is not last valid Will of the deceased, an earlier Will made by her in 2007 is the last valid Will
UNDUE INFLUENCE – Consideration of operation and potential interaction and comparison of undue influence in probate and equity – Whether equity might apply, or extend, its principles respecting undue influence and dispositions inter vivos, not to attack a grant of probate itself, but to subject property passing under a Will to a constructive trust in favour of beneficiaries of earlier Will
SUCCESSION – FAMILY PROVISION – Claim for family provision order under Part 3.2 of the Succession Act 2006 (NSW) by each of four adult children of the deceased in the event that the 2015 Will is the last valid Will of the deceased – The Defendant, the executor named in the 2015 Will of the deceased, her husband of over 50 years and the father of each of the applicants for provision – Actual estate reasonably large – No notional estate – Whether adequate and proper provision not made in Will of the deceased for each of the children – Nature and quantum of provision, if any, that ought to be made for each of the Plaintiffs – Two of the children settle her, and his, dispute, respectively, before, or during, the hearing, in the event that 2015 Will is the last valid Will of the deceased – What order, if any, for each applicant for a family provision order should be made
PRACTICE AND PROCEDURE – Agreement that all of the proceedings be heard consecutively, with the evidence in one being evidence in the other – Uniform Civil Procedure Rules 2005 (NSW) rule 28.5 – some common questions and otherwise desirable to make an order under this rule
Anasson v Phillips (Supreme Court (NSW), 4 March 1988, unrep) Anderson v Hill [2017] NSWSC 1149 Armagas Ltd v Mundogas S.A. (The "Ocean Frost") [1985] 1…
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.
Continue reading Blendell v Byrne
Sign in free to access the full text
Details
AGLC
Blendell v Byrne & Ors; the Estate of Noeline Joan Blendell [2019] NSWSC 583
Case
[2019] NSWSC 583
Decision Date
CaseChat Overview and Summary
The case of Blendell v Byrne was heard in the Supreme Court of New South Wales. The dispute centred on the validity of a last Will made by the deceased in 2015, as well as a claim for a family provision order by her four adult children. The court was required to determine whether the deceased had the necessary knowledge and approval of the contents of the 2015 Will, considering the allegations of undue influence by her husband, who was the executor named in the Will. The court also had to consider if equity principles might apply to subject property passing under the Will to a constructive trust in favour of beneficiaries of an earlier Will, and whether the deceased had made adequate and proper provision for her children in the 2015 Will.
The court examined the suspicious circumstances rule and whether the deceased was coerced by her husband into making the 2015 Will, which left her entire estate to him. The court also considered the operation and potential interaction of undue influence in both probate and equity, and whether equity might extend its principles to attack a grant of probate itself. Additionally, the court assessed the claim for family provision orders by the children, taking into account the nature and quantum of provision that ought to be made for each of them. Two of the children settled their disputes with the deceased's husband before or during the hearing.
The court found that the deceased had the necessary knowledge and approval of the contents of the 2015 Will and dismissed the claims of undue influence by her husband. The court also determined that equity principles did not apply to attack a grant of probate itself. In relation to the family provision claims, the court found that the deceased had made adequate and proper provision for her children in the 2015 Will. Consequently, the court dismissed the claims for family provision orders by the remaining two children. The court further ordered that all proceedings be heard consecutively, with the evidence in one being evidence in the other, in accordance with the Uniform Civil Procedure Rules 2005 (NSW) rule 28.5.