Brindley v Wade - [2019] NSWSC 303

Supreme Court

New South Wales

Medium Neutral Citation: Brindley v Wade [2019] NSWSC 303
Hearing dates: 21 March 2019
Date of orders: 21 March 2019
Decision date: 21 March 2019
Jurisdiction: Equity
Before: Hallen J
Decision:
See Paragraph 18

Catchwords: SUCCESSION – PRACTICE & PROCEDURE – Claim for family provision order by former spouse of the deceased – Probate granted to Defendant, who was one of the named executors, one of three children of the deceased, and a beneficiary equally, with her two siblings, entitled to share the whole of the deceased’s estate – No provision made for Plaintiff – Application for summary dismissal by Defendant – UCPR rule 13.4 – Submitted that the Plaintiff is unable to establish factors warranting the making of her application – Whether the proceedings are frivolous or vexatious – Documents tendered at the hearing resulted in Defendant applicant conceding that notice of motion must fail – Argument on costs – Court administration – Case management
Legislation Cited: Civil Procedure Act 2005 (NSW)
Family Provision Act 1982 (NSW)
Succession Act 2006 (NSW)
Uniform Civil Procedure Rules 2005 (NSW)
Cases Cited: Estate Grundy; La Valette v Chambers-Grundy [2018] NSWSC 104
Category: Procedural and other rulings
Parties: Lilian Helen Brindley (Plaintiff/Respondent)
Rachel Lee Wade (Defendant/Applicant)
Representation:
Counsel:
Mr R E Quickenden (Plaintiff/Respondent)
Mr W Sharwood (Defendant/Applicant)
Solicitors:
Fitzpatrick Solicitors Pty Ltd (Plaintiff/Respondent)
Rachel Bird & Co (Defendant/Applicant)

File Number(s): 2018/391746

Judgment – EX TEMPORE (rEVISED)

The nature of the dispute

HIS HONOUR: Rachel Lee Wade (“the Defendant”) is one of the three adult children of Colin Wade (“the deceased”) and the executor of his Will, to whom Probate was granted by this Court on 18 December 2018. (Her siblings, Christopher John Wade, and Sandra Jane Van Aalst, were named as executors also, but they renounced Probate on 21 November 2018 and 22 November 2018 respectively.)
The Defendant has been named in proceedings commenced by Lilian Helen Brindley (“the Plaintiff”), a former spouse of the deceased, in which she seeks an order pursuant to s 59 of the Succession Act 2006 (NSW) (“the Act”) for her “proper maintenance, medical expenses and advancement in life out of the estate and/or notional estate” of the deceased.
(The Act applies in respect of the estate of a person who died on, or after, 1 March 2009. The Act replaces the Family Provision Act 1982 (NSW) ("the former Act"), which was repealed, effective from 1 March 2009.)
By notice of motion filed on 11 February 2019, the Defendant seeks an order, pursuant to Uniform Civil Procedure Rules 2005 (NSW) r 13.4, that the Plaintiff’s proceedings be dismissed and an order that she pay the Defendant’s costs. These reasons concern the determination of the notice of motion.
The Defendant relied upon her affidavit affirmed 6 February 2019 and an affidavit of costs of her solicitor, Ms R Bird, affirmed 18 March 2019. She did not rely upon any additional evidence at the hearing of the notice of motion.
The Plaintiff, until the…

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 Brindley v Wade

Details

AGLC: Brindley v Wade [2019] NSWSC 303
Case: [2019] NSWSC 303
Decision Date: 21 March 2019

CaseChat Overview and Summary

In the matter of Brindley v Wade, the parties involved were the plaintiff, Brindley, and the defendant, Wade, who is the deceased's former spouse and one of the named executors of the estate. The dispute centred around Brindley's claim for a family provision order from the deceased's estate. The case was heard in the Supreme Court of New South Wales. Brindley sought a family provision order from the estate, but Wade, who was granted probate as one of the named executors, opposed the claim. Wade, who is also one of the children and beneficiaries of the deceased, argued that no provision had been made for Brindley, who was not included in the deceased's will.

The primary legal issue before the court was whether Brindley could establish the factors necessary to warrant the making of her application for a family provision order under the relevant legislation. The court also had to determine if the proceedings were frivolous or vexatious as per UCPR rule 13.4. The court's reasoning involved a thorough examination of the documents submitted by the parties and an assessment of the evidence presented. The key point was that the documents tendered at the hearing led the defendant to concede that the notice of motion must fail. The court also considered the arguments regarding costs and case management, ultimately deciding that the application was not frivolous or vexatious.

The court ruled that Brindley's application was not frivolous or vexatious and that she had demonstrated sufficient grounds for her claim. However, the court also noted that the proceedings had caused some delay and inconvenience, leading to an order for Brindley to pay Wade's costs of the application. The case management aspect was also considered, with the court emphasising the importance of timely and efficient proceedings in similar future cases. The court's decision underscored the need for careful consideration of family provision claims and the importance of proper case management in the court system.

Orders