Legal Research
Cases
Penfold v Perpetual Trustee

Penfold v Perpetual Trustee

Case [2002] NSWSC 648 25 July 2002

No judgment structure available for this case.

Type to search within this case.

CITATION: Penfold v Perpetual Trustee [2002] NSWSC 648

CURRENT JURISDICTION: Equity Division

FILE NUMBER(S): SC 4823 of 2000

HEARING DATE(S): 12, 13, 14 and 17 June 2002

JUDGMENT DATE: 25 July 2002

PARTIES :

Nerida Marie Penfold (Plaintiff)
Perpetual Trustee Company Limited (First Defendant)
Merran Margaret Woollard, Angus John Lawrie Penfold, Brent Norman Lindsay Penfold and Sarah Fern Penfold (Second Defendants)

JUDGMENT OF: Windeyer J at 1

COUNSEL : Mr M J Neil QC with him Mr G L Turner (Plaintiff)
Mr M A Ashhurst (First Defendant)
Mr T A Alexis with him Ms F A L Rogers (Second to Fifth Defendants)

SOLICITORS: Graham Molloy & Associates (Plaintiff)
Kemp Strang (First Defendant)
Cole Butler (Second to Fifth Defendants)

CATCHWORDS: FAMILY PROVISION Application by former spouse for provision out of former husband’s estate - Marriage in 1957, divorce in 1968, and the former husband died in 1999 - Little or no relationship between the former spouse and the deceased - Section 9(1) of the Family Provision Act - Is the former spouse a person who would be regarded as a natural object of testamentary recognition? If the former spouse is one of that class of persons, with regard to the circumstances, should the deceased have made provision for the former spouse in his will? - WILL - PUBLIC POLICY - whether a provision in will void as against Public Policy - Whether clause which prevents remaindermen from taking their interest in possession until - death, burial or cremation - of their mother, should be excluded because that clause has the tendency to cause the children to hate their mother and wish her dead

LEGISLATION CITED: Family Provision Act 1982 s7, s9
Family Law Act 1975

CASES CITED: Brown v Faggotter (NSW CA unreported 13 November 1998)
Burke v Public Trustee (1997) 69 SASR 557
Church Property Trustees Diocese of Newcastle v Ebbeck (1960) 104 CLR 394
Churton v Christian (1988) 13 NSWLR 241
Curtis v Curtis (1825) 3 ADD 33; 162 ER 393
Dijkhuijs (formerly Coney) v Barclay (1988) 13 NSWLR 639
In Re Ellis; Perpetual Trustee Company Limited v Ellis (1929) 45 WN (NSW) 146
In Re Fulop deceased (1987) 8 NSWLR 679
Mulcahy v Weldon [2001] NSWSC 474; [2002] NSWCA 206
O'Shaughnessy v Mantle (1986) 7 NSWLR 142
Permanent Trustee Company Ltd v Fraser (1995) 36 NSWLR 24
Ramsay v Trustees Executors & Agency Company Ltd (1948) 77 CLR 321
Re Adams [1967] VR 881
Re Cutts [1969] VR 254
Saunders v Vautier (1941) 4 Beav 115; 49 ER 282
Re N [1950] VLR 139

DECISION: See paragraph 59

- 31 -

IN THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION

WINDEYER J

THURSDAY 25 JULY 2002

4823/00 NERIDA MARIE PENFOLD V PERPETUAL TRUSTEE COMPANY LIMITED & ORS

JUDGMENT

Outline

1 This judgment deals with claims of the plaintiff, a former wife of the deceased, (1) for an order that certain words be struck out or deleted from the will or probate of the will of the…

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 Penfold v Perpetual Trustee

Details

AGLC: Penfold v Perpetual Trustee [2002] NSWSC 648
Case: [2002] NSWSC 648
Decision Date: 25 July 2002

CaseChat Overview and Summary

In the matter of Penfold v Perpetual Trustee, the former spouse sought provision out of the estate of her former husband, who died in 1999. The parties were married in 1957 and divorced in 1968. The former spouse argued that she should be provided for under section 9(1) of the Family Provision Act. The central legal issues before the court were whether the former spouse was a person who would be considered a natural object of testamentary recognition, and if so, whether the deceased should have made provision for her in his will, considering the circumstances of the marriage and divorce. The court also had to determine the validity of a clause in the will that prevented the remaindermen from taking their interest in possession until the death, burial, or cremation of their mother.

The court considered the nature of the relationship between the former spouse and the deceased at the time of his death, noting that there was little to no relationship. The court examined the statutory criteria under section 9(1) of the Family Provision Act, which requires the court to consider whether the former spouse is a person who would be regarded as a natural object of testamentary recognition. In light of the circumstances, including the length of the marriage, the duration since the divorce, and the lack of any ongoing relationship, the court held that the former spouse was not a natural object of testamentary recognition. Consequently, the former spouse was not entitled to a provision from the estate. The court also upheld the clause in the will that prevented the remaindermen from taking their interest until the death, burial, or cremation of their mother, finding that it did not contravene public policy.

The court concluded that the former spouse was not entitled to any provision from the estate of her former husband. The clause in the will that delayed the remaindermen's interest was deemed valid and not against public policy. The court's decision was based on the absence of a continuing relationship between the former spouse and the deceased, and the lack of any obligation on the part of the deceased to provide for her under the Family Provision Act. The court's ruling ensured that the deceased's testamentary intentions were respected, and no provision was made to the former spouse.

Orders