Pender v Pender

[2021] NSWSC 1591

Supreme Court

New South Wales

Medium Neutral Citation:

Pender v Pender [2021] NSWSC 1591

Hearing dates:

7 December 2021

Date of orders:

7 December 2021

Decision date:

07 December 2021

Jurisdiction:

Equity

Before:

Lindsay J

Decision:

1. ORDER, pursuant to s 91 of the Succession Act 2006 NSW, that the plaintiff be granted administration in respect of the estate of the late Cherie Ann Pender, who died on 12 July 2020, for the purpose of permitting the plaintiff’s application for a family provision order under Chapter 3 of the Succession Act 2006 NSW to be dealt with.

2. ORDER, pursuant to s 59 of the Succession Act 2006 NSW, that provision be made out of the estate of the late Cherie Ann Pender for the maintenance, education and advancement in life of the plaintiff by granting to her the whole of the estate of the deceased for her own use and benefit absolutely.

3.   ORDER that the Public Trustee of Queensland be requested and directed to account to the plaintiff for the whole of the estate of the late Cherie Ann Pender.

4.   RESERVE to the plaintiff liberty to apply for such, if any, further orders or consequential relief as may be required in the working out of these orders.

5.   NOTE that the late Cherie Ann Pender, is identical with the person described as “Cherie Anne” in the marriage certificate certifying the marriage on 11 March 1972 between the deceased and the defendant.

6.   NOTE that no orders are made as to the costs of these proceedings, to the intent that each party pay her or his costs in the proceedings.

7.   ORDER that these orders be entered forthwith.

Catchwords:

SUCCESSION — Family provision — Claim by adult daughter — Small estate

Legislation Cited:

Succession Act 2006 NSW

Cases Cited:

Nil

Texts Cited:

Nil

Category:

Principal judgment

Parties:

Plaintiff: Julie Anne Pender
Defendant: Kelvin Pender

Representation:

Counsel:
Plaintiff: Ms L Goodchild
Defendant: No appearance

Solicitors:
Plaintiff: Ms L Stubbs of Everyday Justice
Defendant: No appearance

File Number(s):

2021/00202346

Publication restriction:

Nil

EX TEMPORE Judgment

HIS HONOUR:

1. By a summons filed on 12 July 2021, the plaintiff, the only daughter of Cherie Ann Pender (the deceased), applies for family provision relief from the intestate estate of her late mother, under Chapter 3 of the Succession Act 2006 NSW.

2. The deceased died in a Sydney nursing home on 12 July 2020, aged 68.

3. She left an estate with an estimated value of about $38,320.73.

4. The estate in its entirety is held in a cash account by the Public Trustee of Queensland

5. In the absence of any application for a grant of administration in respect of the estate of the deceased, it is appropriate that the Court make an order under section 91 of the Succession Act 2006 to facilitate a determination of these proceedings.

6. The Public Trustee of Queensland has advised the solicitor for the plaintiff that it will abide the orders of the Court.

7. The deceased married the defendant on 11 March 1972. There is no evidence that the marriage ended in divorce, but the deceased’s death certificate (for which the plaintiff was the informant) described the deceased as “never married”. This may reflect the fact, and the length, of estrangement between family members over several decades. The deceased’s marriage was not a happy one.

8. There were four children of the marriage (three sons and one daughter), in order of seniority:

1. Thomas, now aged about 52 years.

2. Robert, now aged about 51 years.

3. Gary, now aged about 49 years.

4. Julie Anne (the plaintiff), now aged about 47 years.

9. The marriage between the deceased and the defendant was attended by recurrent domestic violence by the defendant towards the deceased.

10. The deceased and the defendant separated in the mid-1980s in circumstances in which, the plaintiff believes, the defendant assaulted the deceased, leaving her with a severe brain injury which, in large measure, determined the course of her life thereafter.

11. Wherever the truth may lie as to the cause of the deceased’s brain injury at about the time of her separation from the defendant, she lived the balance of her life in a succession of nursing homes, first in Queensland, then in New South Wales, all the while living in a vegetative state.

12. The deceased’s principal visitor, throughout the many years of the life that remained to her, was her daughter, the plaintiff.

13. So far as the plaintiff is aware, the defendant had no contact with the deceased following their separation. The deceased’s sons, in varying degrees, had little or no contact with her.

14. The plaintiff was diligent in the attention she gave to her mother.

15. Each of the defendant and the plaintiff’s siblings has, with varying degrees of informality, disclaimed any opposition to the plaintiff’s claim for family provision relief.

16. The evidence suggests that the only person with a moral claim on the deceased’s bounty is the plaintiff.

17. The plaintiff herself suffers from a disability and is in need of substantial assistance.

18. Consulting the statutory criteria governing the plaintiff’s claim for a family provision order, I make the following findings:

1. (a)   as a daughter of the deceased, the plaintiff is a person “eligible” to apply for a family provision order: Succession Act 2006, section 57(1)(c); section 59(1)(a).

2. (b) her application, by her summons, was made within the time limited by section 58 of the Succession Act.

3. (c)   no provision having been made for her by the deceased (in circumstances in which the deceased’s estate would, on intestacy, pass to the defendant), the plaintiff has been left without adequate provision for her proper maintenance, education and advancement in life: Succession Act section 59(1)(c).

4. (d) the deceased’s estate is so small, the plaintiff’s circumstances are so necessitous, and the relationship between the deceased and the plaintiff was so strong, that provision ought to be made for the plaintiff out of the estate of the deceased (on an exercise of the jurisdiction conferred by section 59(2) of the Succession Act) by an order that the whole of the estate of the deceased pass to the plaintiff for her own use and benefit.

19. The plaintiff has been represented in these proceedings by a charity firm of solicitors, and by counsel, acting on a pro bono basis. I commend them for their efforts and the substantial assistance they have provided to the Court.

20. An application has been made to a registrar for an order that court fees payable on the summons be waived. That is a matter for a registrar, not a judge; but to the extent a judge can express a view on such a matter, I express my view that a waiver would be appropriate.

21. No claim for costs has been made by any person to whom notice of the proceedings has been given. In these circumstances, neither the plaintiff nor the estate of the deceased should have a liability for costs. For that reason, at the invitation of counsel, I formally note that no orders are made as to the costs of the proceedings.

22. For these reasons, I make the following orders and notations:

1. ORDER, pursuant to s 91 of the Succession Act 2006 NSW, that the plaintiff be granted administration in respect of the estate of the late Cherie Ann Pender, who died on 12 July 2020, for the purpose of permitting the plaintiff’s application for a family provision order under Chapter 3 of the Succession Act 2006 NSW to be dealt with.

2. ORDER, pursuant to s 59 of the Succession Act 2006 NSW, that provision be made out of the estate of the late Cherie Ann Pender for the maintenance, education and advancement in life of the plaintiff by granting to her the whole of the estate of the deceased for her own use and benefit absolutely.

3. ORDER that the Public Trustee of Queensland be requested and directed to account to the plaintiff for the whole of the estate of the late Cherie Ann Pender.

4. RESERVE to the plaintiff liberty to apply for such, if any, further orders or consequential relief as may be required in the working out of these orders.

5. NOTE that the late Cherie Ann Pender, is identical with the person described as “Cherie Anne” in the marriage certificate certifying the marriage on 11 March 1972 between the deceased and the defendant.

6. NOTE that no orders are made as to the costs of these proceedings, to the intent that each party pay her or his costs in the proceedings.

7. ORDER that these orders be entered forthwith.

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Decision last updated: 08 December 2021