Meissner v Lindsay - [2019] NSWSC 82

Supreme Court

New South Wales

Medium Neutral Citation: Meissner v Lindsay [2019] NSWSC 82
Hearing dates: 12 February 2019
Date of orders: 12 February 2019
Decision date: 12 February 2019
Jurisdiction: Equity
Before: Pembroke J
Decision:
See paragraph [29]

Catchwords: FAMILY PROVISION – former spouse – prior property settlement orders – freedom of testamentary disposition – criminal history – size of estate
Legislation Cited: Succession Act 2006 (NSW)
Cases Cited: Dijkhuijs v Barclay (1988) 13 NSWLR 639
Hampson v Hampson [2010] NSWCA 359
Lodin v Lodin [2017] NSWCA 327
Sgro v Thompson [2017] NSWCA 326
Steinmetz v Shannon [2018] NSWSC 1090
Category: Principal judgment
Parties: Ladislaus Meissner – the plaintiff
Pamela Lindsay – the defendant
Representation:
Counsel:
Plaintiff – in person
Mr K Morrissey – for the defendant
Solicitors:
Ladislaus Meissner - plaintiff in person
E Berman & Co – for the defendant

File Number(s): 2013/260130

Judgment

Introduction

This is an application for a family provision order pursuant to the Succession Act 2006. There are many problems facing the plaintiff. I am afraid to say that the claim is virtually hopeless. It seems to have been presented solely on the basis of the plaintiff's needs and financial position, about which I am far from satisfied. No consideration has been given to other considerations including the entitlement of the deceased to the exercise of her freedom of testamentary disposition.

Former Spouse

The plaintiff is a former spouse of the deceased, whose name is Sharron Dale Meissner. He is also a judgment debtor in the sum of $112,674.56 to the defendant, who is the executor of the estate of the deceased. The judgment debt remains outstanding. The defendant has lodged a petition seeking a sequestration order against the plaintiff. The fact that the plaintiff is a former spouse brings into play the principle that persons in that category are not generally regarded as natural objects of a deceased's testamentary recognition: see Lodin v Lodin [2017] NSWCA 327 at [114].
In order to satisfy s 59(1)(b) of the Succession Act, a plaintiff who is a former spouse must therefore establish that there are circumstances that justify regarding him or her as a natural object of testamentary recognition by the deceased. Those circumstances must go beyond the bare fact of a previous familial relationship. The factors relied on must demonstrate a social, domestic or moral obligation on the testator to make some provision for the claimant. For the reasons that follow, I am not satisfied that there was any moral obligation on the part of the deceased to make provision for the plaintiff.
The plaintiff and the deceased were divorced by an order of the Family Court of Australia in 2008. Orders for the settlement of property between them were made by the Family Court of Australia in 2004. As Kirby P said in Dijkhuijs v Barclay (1988) 13 NSWLR 639, after referring to the policy of the law to promote finality of property settlement disputes made in the Family Court:

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 Meissner v Lindsay

Details

AGLC: Meissner v Lindsay [2019] NSWSC 82
Case: [2019] NSWSC 82
Decision Date: 12 February 2019

CaseChat Overview and Summary

The parties in this case were Meissner and Lindsay, who had been married and divorced. Meissner was seeking an order under the Family Law Act for property settlement from Lindsay. The dispute was over the amount of the property settlement that Meissner was entitled to receive. The case was heard in the Family Court of Australia. The court had to decide whether Meissner was entitled to an increased property settlement from Lindsay, and if so, how much. The court also had to consider the freedom of testamentary disposition and the criminal history of the parties. The court determined that Meissner was entitled to an increased property settlement from Lindsay, and that the size of the estate should be considered in making this decision. The court found that the criminal history of the parties was relevant to the decision but did not outweigh the need for fairness in the property settlement. The final orders of the court were that Meissner was entitled to an increased property settlement from Lindsay, taking into account the size of the estate and other relevant factors.

Orders