Stanford v Stanford [2021] NSWSC 1469

Supreme Court New South Wales

Medium Neutral Citation: Stanford v Stanford [2021] NSWSC 1469 Hearing dates: 19 October 2021 Date of orders: 17 November 2021 Decision date: 17 November 2021 Jurisdiction: Equity Before: Hallen J Decision: The Court: (1) Orders pursuant to s 91 of the Succession Act 2006 (NSW), that administration in respect of the estate of Edward John Stanford (the deceased), be granted to the Defendant, for the purposes only of permitting the Plaintiff's application for a family provision order to be dealt with. (2) Notes that the Court, having determined that service of a notice of the Plaintiff's application and of the Court's power to disregard her interests, is unnecessary, has disregarded the interests of Susan Frances Jones, who is an eligible person (a former spouse) who has not made an application in relation to the estate or notional estate of the deceased. (3) Orders that the Plaintiff's Summons filed on 16 March 2021 be dismissed. (4) Reserves the question of the determination of the costs of the proceedings, the quantum of those costs and when those costs are to be paid for directions at 3:45 p.m. on Thursday, 2 December 2021. Catchwords: SUCCESSION – Family Provision – Claim by adult child of the deceased for provision under Ch 3 of the Succession Act – No dispute as to eligibility under s 57(1)(c) of the Act – No provision made for Plaintiff in the last Will of the deceased – Significant competing claim of the Defendant, the widow of the deceased – Long marriage - Written agreement made in 2005 for mutual Wills made by the deceased and the Defendant which constituted a binding promise made which would be breached if the deceased had left any of his estate to the Plaintiff. No suggestion that the deceased changed his Will after 2005 or that the Defendant had changed, or intended to change, her Will, which, in terms, reflected her binding promise to the deceased Whether the Plaintiff was left without adequate provision for his proper maintenance and advancement in life – Whether an order for provision ought to be made for his proper maintenance and advancement in life and, if so, in what amount. Legislation Cited: Civil Procedure Act 2005 (NSW) s 98(4)(c) Family Provision Act 1982 (NSW) Probate and Administration Act 1898 (NSW) s 41A Succession Act 2006 (NSW) ss 3, 55, 57-59, 60-61, 63, 65-66, 72, 74-77, 80, 83-84, 87-89, 91 & 99 Cases Cited: Andrew v Andrew (2012) 81 NSWLR 656; [2012] NSWCA 308 Aslan v Kopf [1995] NSWCA 26 Baird v Smee [2000] NSWCA 253 Barns v Barns (2003) 214 CLR 169; [2003] HCA 9 Beach Petroleum NL v Johnson (No. 2) (1995) 57 FCR 119 Birmingham v Renfrew (1937) 57 CLR 666; [1937] HCA 52 Bladwell v Davis [2004] NSWCA 170 Borebor v Keane (2013) 11 ASTLR 96; [2013] VSC 35 Bosch v Perpetual Trustee Co Ltd [1938] 2 All ER 14 Bowyer v Wood (2007) 99 SASR 190; [2007] SASC 327 Burke v Burke (No 2) [2015] NSWCA 195 Chapple v Wilcox [2014] 87 NSWLR 646 Clifford v Mayr [2010] NSWCA 6 Cross v Wasson [2009] NSWSC 378; (2009) 2 ASTLR 201 Delaforce v Simpson-Cook (2010) 78 NSWLR 483 du Maurier v du Maurier [2021] NSWSC 83 Foley v Ellis [2008] NSWCA 288 Goodsell v Wellington [2011] NSWSC 1232 Gorton v Parks (1989) 17 NSWLR 1 Grey v Harrison [1997] 2 VR 359 Heyward v Fisher (Court of Appeal (NSW), Kirby P, 26 April 1985, unrep) Hudson v Gray & Ors (1927) 39 CLR 473; [1927] HCA 31 Ibrahim v Nasr [2021] NSWSC 1321 Kay v Archbold [2008] NSWSC 254 Langtry v Campbell (NSWSC, 7 March 1991, unreported) Limberger v Limberger; Oakman v Limberger [2021] NSWSC 474 Magill v Magill (2006) 226 CLR 551; [2006] HCA 51 Marshall v Carruthers [2002] NSWCA 47 Marshall v Carruthers; Re the Will of Sitch (deceased); Gillies v Executors of the Will of Sitch [2005] VSC 308 McGettigan v Coulter & Anor; Coulter & Anor v McGettigan (No. 2) [2021] NSWSC 1356 McKenzie v Topp [2004] VSC 90 Milillo v Konnecke [2009] NSWCA 109 Permanent Trustee Co Ltd v Fraser (1995) 36 NSWLR 24 Pontifical Society for the Propagation of the Faith v Scales (1962) 107 CLR 9 Sellers v Scrivenger [2010] VSC 320 Slack v Rogan (2013) 85 NSWLR 253; [2013] NSWSC 522 Steinmetz v Shannon [2019] 99 NSWLR 687 Sung v Malaxos [2015] NSWSC 186 Szypica v O'Beirne [2013] NSWSC 297 Verzar v Verzar [2012] NSWSC 1380 Wheat v Wisbey [2013] NSWSC 537 Wilcox v Wilcox [2012] NSWSC 1138 Yee v Yee [2017] NSWCA 305 Texts Cited: Ford and Lee, The Law of Trusts (4th ed, 2019, Thomson Reuters) Rosalind Croucher, "Contracts to Leave Property by Will and Family Provision after Barns v Barns [2003] HCA 9" (2005) 27(2) Sydney Law Review 263 Category: Principal judgment Parties: Brendan Stanford (Plaintiff) Dulcie Stanford (Defendant) Representation: Counsel: M Galvin (Plaintiff) H Morrison (Defendant)