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Weisbord v Rodny (No 4)

Weisbord v Rodny (No 4)

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Case Copied 16 December 2022 83 min read

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Supreme Court

New South Wales

Medium Neutral Citation: Weisbord v Rodny (No 4) [2022] NSWSC 1726
Hearing dates: Proceedings remitted to the Equity Division by the Court of Appeal on 16 March 2020; final written submissions delivered on 15 December 2021
Decision date: 16 December 2022
Jurisdiction: Equity
Before: Robb J
Decision:
Claim by Jeanette Weisbord for further family provision dismissed
Claims by Joel Weisbord and Alexander Weisbord for further family provision allowed — see [169] – [171] below
As to costs see [184] below

Catchwords:
SUCCESSION — family provision — claims by adult child and adult grandchildren for provision from the deceased’s estate under Succession Act 2006 (NSW), Ch 3 — consideration of significance of concession in related proceedings for probate of an alleged informal will of the deceased concerning the subject document expressing the testamentary intentions of the deceased — consideration of the significance of the reasoning of the Court of Appeal in determining that the subject document should not be admitted to probate in relation to the determination of the testamentary intentions of the deceased — finding that the subject document did express the testamentary intentions of the deceased — finding that by reason of the value of her assets and the gift received in the will of the deceased that was admitted to probate that the adult child had not satisfied the jurisdictional requirement in s 59(1)(c) that adequate provision has not been provided at the present time for her proper maintenance, education or advancement in life by the will of the deceased — significance to the adult child’s case of her not having provided evidence of her needs having regard to her existing assets — finding that the adult grandchildren had satisfied the jurisdictional requirement — consideration of the application of s 59(2) in circumstances where the Court did not have evidence of the additional costs incurred by the parties in relation to the appeal or the effect of costs orders on the estate and the Court did not have evidence of possible changes in the value of the assets in the estate since the Court reserved judgment at the end of the primary hearing at first instance — requirement for further submissions as to the terms of the orders for further provision under s 59(2) that should be made in favour of the grandchildren

Legislation Cited:
Evidence Act 1995 (NSW), s 140
Family Provision Act 1982 (NSW), s 16
Succession Act 2006 (NSW), Ch 3, ss 3, 8, 57, 58, 59, 60

Cases Cited:
Bassett v Bassett [2021] NSWCA 320
Bowditch v NSW Trustee and Guardian [2012] NSWSC 275
Chapple v Wilcox (2014) 87 NSWLR 646; [2014] NSWCA 392
Chisak v Presot [2021] NSWSC 597
Chisak v Presot [2022] NSWCA 100
Churton v Christian (1988) 13 NSWLR 241; [1988] NSWCA 23
Graham v Graham [2011] NSWSC 504
Haertsch v Whiteway (2020) 102 NSWLR 386; [2020] NSWCA 133
Hayes v Marquis [2008] NSWCA 10
Limberger v Limberger; Oakman v Limberger [2021] NSWSC…

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.

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Details

Case: [2022] NSWSC 1726
Decision Date: 16 December 2022

CaseChat Overview and Summary

The case of Weisbord v Rodny (No 4) involved claims by an adult child and adult grandchildren for provision from the deceased's estate under the Succession Act 2006 (NSW). The dispute was heard in the Supreme Court of New South Wales. The central issue revolved around the interpretation of the deceased's testamentary intentions, particularly in relation to an alleged informal will and the subsequent admission to probate of a will.

The court was tasked with determining whether the subject document truly reflected the deceased's intentions and if the adult child and grandchildren were eligible for further provision from the estate. The court considered the concession made in related proceedings concerning the informal will and the reasoning of the Court of Appeal which had previously ruled against the admission of the subject document to probate. Ultimately, the Supreme Court found that the subject document did indeed express the deceased's testamentary intentions. However, the court concluded that the adult child, due to her substantial assets and the gifts received under the admitted will, had not met the jurisdictional requirement of not having adequate provision made for her maintenance, education, or advancement in life.

The adult grandchildren, on the other hand, were found to have satisfied the jurisdictional requirement. The court noted the lack of evidence regarding the additional costs incurred by the parties in the appeal and the potential changes in the value of the estate assets since the judgment was reserved. Consequently, the court required further submissions on the appropriate terms for orders of further provision under section 59(2) in favor of the grandchildren. The court's decision highlighted the importance of demonstrating needs in light of existing assets and the necessity for detailed evidence to support claims for further provision.

Orders