(1) Orders that the amended Summons be dismissed with costs.
Catchwords:
SUCCESSION – Family Provision – Claim by former spouse for provision from the deceased’s estate under Succession Act 2006 (NSW), Ch 3 – Probate granted to Defendant, one of the named executors, who is one of three children of the deceased, and a beneficiary equally entitled with her two siblings, to share the deceased’s estate – Whether there are factors that warrant the making of the application within the meaning of s 59(1)(b) of the Succession Act – Whether the Plaintiff has established facts that give her the status of a person who would be generally regarded as a natural object of testamentary recognition by the deceased in circumstances where marriage had ended about four years prior to the deceased’s death, no subsequent relationship other than somewhat acrimonious business relationship existed between them, and where, shortly prior to death, their financial affairs were resolved by final orders of Federal Circuit Court to which the Plaintiff and the deceased agreed – Assertion of conduct by the deceased by way of alleged non-disclosure of his medical condition and the failure to disclose an inheritance which was to come to him
[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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AGLC
Brindley v Wade (No 2) [2020] NSWSC 882
Case
[2020] NSWSC 882
Decision Date
CaseChat Overview and Summary
The case of Brindley v Wade (No 2) involved a former spouse seeking provision from the deceased's estate under the Succession Act 2006 (NSW). The plaintiff, who was the former spouse, sought an order for adequate provision from the estate of the deceased, who had passed away, leaving a will. The defendant was one of the named executors of the will and also one of the deceased's children and beneficiaries. The central issue before the court was whether there were sufficient factors to warrant the making of the application for provision under section 59(1)(b) of the Succession Act.
The court was required to determine whether the plaintiff had established facts that would give her the status of a natural object of testamentary recognition by the deceased, despite the marriage having ended approximately four years prior to the deceased's death. The court also needed to consider the nature of the relationship between the plaintiff and the deceased post-marriage, which was somewhat contentious and primarily focused on business matters. The financial affairs of the parties had been resolved by the final orders of the Federal Circuit Court, which both parties had agreed to. The plaintiff further alleged that the deceased had not disclosed his medical condition and an inheritance which was to come to him.
In addressing these issues, the court considered the nature of the relationship between the parties and the circumstances in which it had ended. It examined the factors that might warrant the making of an application for provision under the Succession Act, focusing on whether the plaintiff had demonstrated that she would be regarded as a natural object of testamentary recognition by the deceased. The court also took into account the plaintiff's allegations regarding the deceased's non-disclosure of his medical condition and an inheritance. Ultimately, the court determined that the plaintiff had not established sufficient grounds to warrant an order for provision from the deceased's estate.