Rodny v Weisbord

The New South Wales Court of Appeal considered appeals by Joel Weisbord and Alexander Weisbord, who were grandchildren of the deceased, Rose Rodny. The dispute concerned family provision claims made by the grandchildren from the deceased's estate. The primary judge had made orders for provision from the estate, but the executor, Jeannette Weisbord, sought leave to appeal against the refusal to award indemnity costs. The grandchildren also appealed against aspects of the primary judge's orders.

The Court was required to determine whether the primary judge erred in failing to require the claimants to provide updated evidence, particularly given that some of the evidence was over five years old and the deceased's unexecuted will was 16 years old. A further issue was the weight to be given to the deceased's testamentary intentions, as expressed in the unexecuted will, in the context of a significant passage of time and a lack of currency in evidence regarding the applicants' financial circumstances and needs. The Court also considered whether the Succession Act 2006 (NSW), s 59(2), mandated the filing of updating evidence.

The Court allowed the appeals by Joel Weisbord and Alexander Weisbord, setting aside the primary judge's order of 15 December 2023 and substituting an order that each plaintiff be paid $700,000 from the estate. The Court reasoned that while the primary judge had accepted an updated valuation of the estate, the delay in the proceedings and the age of the evidence had impacted the assessment of provision. The Court refused the executor leave to appeal the refusal of indemnity costs. The respondents' costs in the Court of Appeal were ordered to be paid from the estate on the ordinary basis, while the appellant's costs were ordered to be paid from the estate on an indemnity basis.