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 1090Category: Principal judgment Parties: Ladislaus Meissner – the plaintiff
Pamela Lindsay – the defendantRepresentation: Counsel:
Solicitors:
Plaintiff – in person
Mr K Morrissey – for the defendant
Ladislaus Meissner - plaintiff in person
E Berman & Co – for the defendant
File Number(s): 2013/260130
Judgment
Introduction
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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
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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].
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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.
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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:
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- Meissner v Lindsay [2019] NSWSC 82
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- [2019] NSWSC 82
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