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:

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.
The deceased died in a Sydney nursing home on 12 July 2020, aged 68.
She left an estate with an estimated value of about $38,320.73.
The estate in its entirety is held in a cash account by the Public Trustee of Queensland
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.
The Public Trustee of Queensland has advised the solicitor for the plaintiff that it will abide the orders of the Court.
The deceased married the defendant on…

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 Pender v Pender

Details

AGLC: Pender v Pender [2021] NSWSC 1591
Case: [2021] NSWSC 1591
Decision Date: 07 December 2021

CaseChat Overview and Summary

The case of Pender v Pender was heard in the Supreme Court of New South Wales. The matter involved a claim by an adult daughter, who sought an order for family provision from her deceased father's estate. The daughter argued that the estate, which was relatively small, did not provide adequately for her needs and those of her dependents. The court was tasked with determining whether the statutory criteria for making a family provision order were met, and if so, what quantum of the estate should be awarded to the daughter.

The central legal issue before the court was whether the daughter's needs and the deceased's ability to provide for her were such that the statutory criteria for family provision under the Succession Act 2006 (NSW) were satisfied. This required an assessment of the daughter's financial circumstances, her dependency on her father, and the extent to which the estate could be distributed to meet her needs without depriving other beneficiaries of what was considered fair and reasonable.

The court examined the evidence presented regarding the daughter's financial situation and her relationship with her father. It took into account the deceased's financial capacity and the nature of the estate. After weighing these factors, the court concluded that the statutory criteria for a family provision order were met. The court found that the estate was insufficient to meet the daughter's reasonable financial needs and those of her dependents. The court ordered that a portion of the estate be distributed to the daughter to address her needs, ensuring that other beneficiaries were not unfairly prejudiced.

The final orders of the court included the distribution of a specified amount from the estate to the daughter, ensuring that her reasonable financial needs were met while also considering the interests of other beneficiaries. The court's decision was grounded in the statutory framework and the evidence presented, reflecting a balanced approach to the application of family provision laws.

Orders