Penfold v Perpetual Trustee [2002] NSWSC 648

New South Wales Supreme Court

CITATION : Penfold v Perpetual Trustee [2002] NSWSC 648 CURRENT JURISDICTION: Equity Division FILE NUMBER(S) : SC 4823 of 2000 HEARING DATE(S) : 12, 13, 14 and 17 June 2002 JUDGMENT DATE : 25 July 2002

Nerida Marie Penfold (Plaintiff) PARTIES : Perpetual Trustee Company Limited (First Defendant) Merran Margaret Woollard, Angus John Lawrie Penfold, Brent Norman Lindsay Penfold and Sarah Fern Penfold (Second Defendants) JUDGMENT OF : Windeyer J at 1

Mr M J Neil QC with him Mr G L Turner (Plaintiff) COUNSEL : Mr M A Ashhurst (First Defendant) Mr T A Alexis with him Ms F A L Rogers (Second to Fifth Defendants) Graham Molloy & Associates (Plaintiff) SOLICITORS : Kemp Strang (First Defendant) Cole Butler (Second to Fifth Defendants) CATCHWORDS : FAMILY PROVISION Application by former spouse for provision out of former husband's estate - Marriage in 1957, divorce in 1968, and the former husband died in 1999 - Little or no relationship between the former spouse and the deceased - Section 9(1) of the Family Provision Act - Is the former spouse a person who would be regarded as a natural object of testamentary recognition? If the former spouse is one of that class of persons, with regard to the circumstances, should the deceased have made provision for the former spouse in his will? - WILL - PUBLIC POLICY - whether a provision in will void as against Public Policy - Whether clause which prevents remaindermen from taking their interest in possession until - death, burial or cremation - of their mother, should be excluded because that clause has the tendency to cause the children to hate their mother and wish her dead LEGISLATION CITED : Family Provision Act 1982 s7, s9 Family Law Act 1975 Brown v Faggotter (NSW CA unreported 13 November 1998) Burke v Public Trustee (1997) 69 SASR 557 Church Property Trustees Diocese of Newcastle v Ebbeck (1960) 104 CLR 394 Churton v Christian (1988) 13 NSWLR 241 Curtis v Curtis (1825) 3 ADD 33; 162 ER 393 Dijkhuijs (formerly Coney) v Barclay (1988) 13 NSWLR 639 In Re Ellis; Perpetual Trustee Company Limited v Ellis (1929) 45 WN (NSW) 146 CASES CITED : In Re Fulop deceased (1987) 8 NSWLR 679 Mulcahy v Weldon [2001] NSWSC 474; [2002] NSWCA 206 O'Shaughnessy v Mantle (1986) 7 NSWLR 142 Permanent Trustee Company Ltd v Fraser (1995) 36 NSWLR 24 Ramsay v Trustees Executors & Agency Company Ltd (1948) 77 CLR 321 Re Adams [1967] VR 881 Re Cutts [1969] VR 254 Saunders v Vautier (1941) 4 Beav 115; 49 ER 282 Re N [1950] VLR 139 DECISION : See paragraph 59