Penfold v Perpetual Trustee [2002] NSWSC 648

Penfold v Perpetual Trustee [2002] NSWSC 648

The plaintiff's application was dismissed because there were not factors warranting the making of her application; the relationship with the deceased ended thirty years before his death, there was little or no ongoing contact, any maintenance or property settlements had been final, there was no relevant dependency, and her financial circumstances and duties as a parent did not amount to factors warranting provision under the Family Provision Act 1982. The will's clauses in question were not void as against public policy.

Parties
Plaintiff: Nerida Marie Penfold; First Defendant: Perpetual Trustee Company Limited; Second Defendant: Merran Margaret Woollard; Third Defendant: Angus John Lawrie Penfold; Fourth Defendant: Brent Norman Lindsay Penfold; Fifth Defendant: Sarah Fern Penfold
Jurisdiction
Australia
Judgment Date
25 July 2002
Procedural Posture
Family Provision Application / Judgment
Outcome
Plaintiff's claim dismissed
Legal Topics
Family Provision for Former Spouse, Public Policy and Wills, Testamentary Recognition, Will Construction
Succession Law Family Law Equity Family Provision for Former Spouse Public Policy and Wills Testamentary Recognition Will Construction

Case Brief

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Parties

Nerida Marie Penfold

Plaintiff

Perpetual Trustee Company Limited

First Defendant

Merran Margaret Woollard

Second Defendant

Angus John Lawrie Penfold

Third Defendant

Brent Norman Lindsay Penfold

Fourth Defendant

Sarah Fern Penfold

Fifth Defendant

Procedural Posture

Family Provision Application / Judgment

Legal Issues

  1. 1 Whether the plaintiff, as a former spouse, is entitled to provision under the Family Provision Act 1982
  2. 2 Whether certain clauses of the will are void as against public policy

Ratio Decidendi

The plaintiff's application was dismissed because there were not factors warranting the making of her application; the relationship with the deceased ended thirty years before his death, there was little or no ongoing contact, any maintenance or property settlements had been final, there was no relevant dependency, and her financial circumstances and duties as a parent did not amount to factors warranting provision under the Family Provision Act 1982. The will's clauses in question were not void as against public policy.

Court Disposition

Plaintiff's claim dismissed

Orders

  • The plaintiff's application for provision out of the estate of the deceased is dismissed.
  • The plaintiff's application to have parts of the will declared void or struck out on grounds of public policy is dismissed.