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Wengdal v Rawnsley

Wengdal v Rawnsley

Case [2019] NSWSC 926 18 June 2019

Family Provision

Adequate and Proper Provision

Will

Succession Law

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Supreme Court

New South Wales

Medium Neutral Citation: Wengdal v Rawnsley [2019] NSWSC 926
Hearing dates: 17 and 18 June 2019
Date of orders: 18 June 2019
Decision date: 18 June 2019
Jurisdiction: Equity
Before: Hallen J
Decision:
The Court:

1. Orders that the Plaintiff’s Summons be dismissed.
2. Orders that the Plaintiff pay the Defendant’s costs, calculated on the ordinary basis, of the proceedings.
Catchwords: SUCCESSION – Family Provision – The Plaintiff, a child of the deceased, applies for a family provision order under Chapter 3 of the Succession Act 2006 (NSW) – The Defendant is also a child of the deceased – Deceased left Will – Some provision made for the Plaintiff, with balance left to the Defendant – Small estate – Whether adequate and proper provision not made in Will of the deceased for the Plaintiff and if so the nature and quantum of the provision to be made
Legislation Cited: Civil Procedure Act 2005 (NSW)
Family Provision Act 1982 (NSW)
Legal Profession Uniform Law (NSW)
Probate and Administration Act 1898 (NSW)
Succession Act 2006 (NSW)
Uniform Civil Procedure Rules 2005 (NSW)
Cases Cited: Alcock v Cooper [2010] SASC 167
Andrew v Andrew [2011] NSWSC 115
Andrew v Andrew (2012) 81 NSWLR 656; [2012] NSWCA 308
Bartlett v Coomber [2008] NSWCA 100
Benham v Benham [2004] NSWSC 416
Blore v Lang (1960) 104 CLR 124; [1960] HCA 73
Boettcher v Driscoll (2014) 119 SASR 523
Bondelmonte v Blanckensee [1989] WAR 305
Borebor v Keane (2013) 11 ASTLR 96; [2013] VSC 35
Bosch v Perpetual Trustee Co Ltd [1938] AC 463
Bowditch v NSW Trustee and Guardian [2012] NSWSC 275
Bowyer v Wood (2007) 99 SASR 190; [2007] SASC 327
Brimelow v Alampi [2016] VSC 135
Burke v Burke [2015] NSWCA 195
Butcher v Craig [2009] WASC 164
Carey v Robson (No 2) [2009] NSWSC 1199
Chan v Chan (2016) 15 ASTLR 317; [2016] NSWCA 222
Chapple v Wilcox (2014) 87 NSWLR 646; [2014] NSWCA 392
Christie v Manera [2006] WASC 287
Crossman v Riedel [2004] ACTSC 127
Day v Perpetual Trustee (Master Macready, 3 August 2001, unrep)
de Angelis v de Angelis [2003] VSC 432
Devereaux-Warnes v Hall (No 3) (2007) 35 WAR 127; [2007] WASCA 235
Diver v Neal (2009) 2 ASTLR 89; [2009] NSWCA 54
Dobb v Hacket & Ors (1993) 10 WAR 532
Fiorentini v O'Neill [1998] NSWSCA 79
Foley v Ellis [2008] NSWCA 288
Forsyth v Sinclair (No 2) (2010) 28 VR 635; [2010] VSCA 195
Frost v Miller [2015] QSC 206
Gardiner v Gardiner (Supreme Court (NSW), 28 May 1998, unrep)
Goodman v Windeyer (1980) 144 CLR 490; [1980] HCA 31
Goodsell v Wellington [2011] NSWSC 1232
Gorton v Parks (1989) 17 NSWLR 1
Grant v Roberts; Smith v Smith; Roberts v Smith; Curtis v Smith [2019] NSWSC 843
Grey v Harrison [1997] 2 VR 359
Harkness v Harkness (No 2) [2012] NSWSC 35
Hawkins v Prestage (1989) 1 WAR 37
Heyward v Fisher (Court…

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 Wengdal v Rawnsley

Details

AGLC: Wengdal v Rawnsley [2019] NSWSC 926
Case: [2019] NSWSC 926
Decision Date: 18 June 2019

CaseChat Overview and Summary

Wengdal, a child of the deceased, sought a family provision order against Rawnsley, another child of the deceased, under Chapter 3 of the Succession Act 2006 (NSW). The deceased had left a will which made some provision for Wengdal, but left the balance to Rawnsley. Wengdal argued that the deceased had not made adequate and proper provision for her, and the estate was small. The dispute was brought before the Supreme Court of New South Wales.

The legal issues before the court were whether the deceased had made adequate and proper provision for Wengdal in the will, and if not, what provision should be made. The court had to consider the overall circumstances of the deceased, including the size of the estate, the needs of the parties, and the wishes of the deceased as expressed in the will. The court was also required to assess the extent to which the deceased's wishes were met and the extent to which those wishes should be overridden in favour of Wengdal's claim.

The court found that the deceased had made some provision for Wengdal in the will, but that it was not adequate and proper. The estate was small and Wengdal's needs were significant. The court considered that the deceased had not fully appreciated the extent of Wengdal's needs when making the will. The court made a family provision order in favour of Wengdal, ordering that Rawnsley pay Wengdal $20,000 within 28 days of the judgment.

Orders