Weisbord v Rodny (No 4) [2022] NSWSC 1726

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 474 Madden-Smith v Madden (Estate of late Doris Linda Madden) [2012] NSWSC 146 McDonald v O'Connor [2019] NSWSC 261 Megerditchian v Khatchadourian [2020] NSWCA 229 Purnell v Tindale [2020] NSWSC 746 Re Filomena Rodi, deceased [2016] NSWSC 1696 Re Fulop Deceased (1987) 8 NSWLR 679 Rodny v Weisbord (2020) 102 NSWLR 403; [2020] NSWCA 22 Sadiq v NSW Trustee & Guardian [2015] NSWSC 716 Slack v Rogan; Palffy v Rogan (2013) 85 NSWLR 253; [2013] NSWSC 522 Spata v Tumino (2018) 95 NSWLR 706; [2018] NSWCA 17 Steinmetz v Shannon (2019) 99 NSWLR 687; [2019] NSWCA 114 Stojanovski v Stojanovski [2019] NSWSC 1713 Stojanovski v Stojovski [2016] NSWSC 976 Vigolo v Bostin (2005) 221 CLR 191; [2005] HCA 11 Weisbord v Rodny (No 2) [2019] NSWSC 739 Weisbord v Rodny (No 3) [2021] NSWSC 458 Weisbord v Rodny; Rodney v Weisbord [2018] NSWSC 1866 Yee v Yee [2017] NSWCA 305 Yesilhat v Calokerinos [2021] NSWCA 110 Category: Principal judgment Parties: Proceedings 2015/324982: Jeannette Weisbord (Plaintiff) Laurence Rodny (Defendant)