Blendell v Byrne & Ors; The Estate of Noeline Joan Blendell [2019] NSWSC 583

Supreme Court New South Wales

Medium Neutral Citation: Blendell v Byrne & Ors; The Estate of Noeline Joan Blendell [2019] NSWSC 583 Hearing dates: 18-21 February 2019; 25 February 2019 Date of orders: 20 May 2019 Decision date: 20 May 2019 Jurisdiction: Equity Before: Hallen J Decision: See paragraphs [662]-[663] Catchwords: SUCCESSION – Wills, probate and administration –Validity of last Will of the deceased made in 2015 – No question of lack of testamentary capacity of the deceased – Lack of knowledge and approval of 2015 Will alleged – Suspicious circumstances rule – Whether the deceased knew and approved of the contents of the 2015 Will – Undue influence alleged – Whether the deceased was coerced by her husband into, and did not intend the disposition of the whole of her estate to him, in the 2015 Will – No dispute that if 2015 Will is not last valid Will of the deceased, an earlier Will made by her in 2007 is the last valid Will

UNDUE INFLUENCE – Consideration of operation and potential interaction and comparison of undue influence in probate and equity – Whether equity might apply, or extend, its principles respecting undue influence and dispositions inter vivos, not to attack a grant of probate itself, but to subject property passing under a Will to a constructive trust in favour of beneficiaries of earlier Will

SUCCESSION – FAMILY PROVISION – Claim for family provision order under Part 3.2 of the Succession Act 2006 (NSW) by each of four adult children of the deceased in the event that the 2015 Will is the last valid Will of the deceased – The Defendant, the executor named in the 2015 Will of the deceased, her husband of over 50 years and the father of each of the applicants for provision – Actual estate reasonably large – No notional estate – Whether adequate and proper provision not made in Will of the deceased for each of the children – Nature and quantum of provision, if any, that ought to be made for each of the Plaintiffs – Two of the children settle her, and his, dispute, respectively, before, or during, the hearing, in the event that 2015 Will is the last valid Will of the deceased – What order, if any, for each applicant for a family provision order should be made