Brindley v Wade (No 2) [2020] NSWSC 882

Supreme Court New South Wales

Medium Neutral Citation: Brindley v Wade (No 2) [2020] NSWSC 882 Hearing dates: 18, 19 and 20 May 2020 Date of orders: 20 May 2020 Decision date: 09 July 2020 Jurisdiction: Equity Before: Hallen J Decision: The Court: (1) Orders that the amended Summons be dismissed with costs. Catchwords: SUCCESSION – Family Provision – Claim by former spouse for provision from the deceased's estate under Succession Act 2006 (NSW), Ch 3 – Probate granted to Defendant, one of the named executors, who is one of three children of the deceased, and a beneficiary equally entitled with her two siblings, to share the deceased's estate – Whether there are factors that warrant the making of the application within the meaning of s 59(1)(b) of the Succession Act – Whether the Plaintiff has established facts that give her the status of a person who would be generally regarded as a natural object of testamentary recognition by the deceased in circumstances where marriage had ended about four years prior to the deceased's death, no subsequent relationship other than somewhat acrimonious business relationship existed between them, and where, shortly prior to death, their financial affairs were resolved by final orders of Federal Circuit Court to which the Plaintiff and the deceased agreed – Assertion of conduct by the deceased by way of alleged non-disclosure of his medical condition and the failure to disclose an inheritance which was to come to him Legislation Cited: Civil Procedure Act 2005 (NSW), ss 62, 98 Evidence (Audio and Audio Visual Links) Act 1998 (NSW), s 5B Family Law Act 1975 (Cth), ss 79, 79A Family Provision Act 1982 (NSW) Probate and Administration Act 1898 (NSW), s 86 Succession Act 2006 (NSW), ss 3, 57, 58, 59, 61, 63, 84, 88, 89, Ch 3 Uniform Civil Procedure Rules 2005 (NSW), rr 42.1, 42.2, 42.20 Cases Cited: Antov v Bokan (No 2) [2019] NSWCA 250 Australiawide Airlines Ltd v Aspirion Pty Ltd [2006] NSWCA 365 Barker v Barker (2007) 36 Fam LR 650; [2007] FamCA 13 Blendell v Byrne; The Estate of Noeline Joan Blendell (No 2) [2019] NSWSC 798 Brindley v Wade [2019] NSWSC 303 Bruce v Greentree (No 2) [2015] NSWSC 1636 Calderbank v Calderbank [1976] Fam 93 Carey v Robson (No 2) [2009] NSWSC 1199 Chan v Chan (2016) 15 ASTLR 317; [2016] NSWCA 222 Dijkhuijs v Barclay (1988) 13 NSWLR 639 Forsyth v Sinclair (No 2) (2010) 28 VR 635; [2010] VSCA 195 Harkness v Harkness (No 2) [2012] NSWSC 35 In the Marriage of Bonnici (1991) 105 FLR 102 In the marriage of Suiker (1993) 117 FLR 254; (1993) ¶FLC 92-436 Jeeves v Jeeves [2011] FamCAFC 94 Johnston v Johnston (1987) 11 NSWLR 38 Lodin v Lodin (2017) 16 ASTLR 576; [2017] NSWCA 327 Lodin v Lodin; Estate of Dr Mohammad Masoud Lodin [2017] NSWSC 10 Metro Hotel Sydney Pty Ltd v Kol Tov Pty Ltd [2010] NSWSC 1195 Neale v Neale [2015] NSWCA 206 Page v Page [2016] NSWSC 1218 Page v Page (2017) 16 ASTLR 331; [2017] NSWCA 141 Penfold v Predny [2016] NSWSC 472 Quince v Quince [2020] NSWSC 326 Rakovich v Marszalek [2020] NSWSC 589 Salmon v Osmond (2015) 14 ASTLR 442; [2015] NSWCA 42 Sassoon v Rose [2013] NSWCA 220 Singer v Berghouse (1993) 114 ALR 521; [1993] HCA 35 Smith v Shilkin (No 3) [2020] NSWSC 787 Stillianesis v Stillianesis [2017] NSWSC 1189 Texts Cited: David Malcolm, "To Wig or be Damned" (1988) 15(7) Brief at 8 Category: Principal judgment Parties: Lilian Helen Brindley (Plaintiff) Rachael Lee Wade (Defendant) Representation: Counsel: A Lakeman (Plaintiff) W Sharwood with M Jones (Defendant)