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Ackerley v Felton

Ackerley v Felton

Case [2012] NSWSC 1468 4 December 2012

Wills

Testamentary Capacity

Informal Will

Guardianship

Succession Law

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Supreme Court

New South Wales

Medium Neutral Citation: Ackerley v Felton [2012] NSWSC 1468
Hearing dates: 1 November 2012
Decision date: 04 December 2012
Before: Young AJ
Decision:
1. Declare that the document commencing "My will Kevin J Ackerley" dated 4 June 2007 is entitled to be admitted to probate.
2. Order that the court assigns the plaintiff as guardian of Corey Gates to take the grant of administration during the minority of Corey Gates for the latter's use and benefit.
3. Refer to the Registrar to complete the issue of letters of Administration cum testamento annexo durante minore aetate to the plaintiff limited until Corey Gates attains 18 years of age.
4. Refer to the Registrar as to whether the grant under s 41A of the Probate and Administration Act 1898 ought to be recalled.
5. Reserve questions of costs with the intent that the judge hearing the pending applications under the Family Provision Act 1982 in the estate of Kevin James Ackerley may deal with such costs when making orders in those proceedings.

Catchwords: WILLS, PROBATE AND ADMINISTRATION - informal will - whether the document constitutes a will of the deceased person - whether the document embodies the deceased's real testamentary intentions - whether the deceased was of sound mind, memory and understanding at the time he executed the document- appointment of guardian for grant of will
Legislation Cited: Family Provision Act 1982
Probate and Administration Act 1898
Succession Act 2005
Supreme Court Rules 1970
Cases Cited: Bailey v Bailey [1924] HCA 21; (1923) 34 CLR 558
Boughton v Knight (1873) LR 3 P & D 64
Bull v Fulton [1942] HCA 13; (1942) 66 CLR 295
Dew v Clark (1826) 3 Add 79; 162 ER 410
Du Maurier v Wechsler [2001] NSWSC 34
Easter v Griffith (1995) 217 ALR 284
Estate of Hodges (1988) 14 NSWLR 698
King v Hudson [2009] NSWSC 1013
Nichols v Nichols (1814) 2 Phill Ecc 180; 161 ER 1113
Re Beech [1923] P 46
Re Knibbs [1962] 1 WLR 852; [1962] 2 All ER 829
Ryan v Kazacos (2001) 159 FLR 452
The Estate of Masters; Re Hill v Plummer (1994) 33 NSWLR 446
Timbury v Coffee [1941] HCA 22; (1941) 66 CLR 277
Wechsler v Du Maurier [2002] NSWCA 13
Whyte v Pollok [1882] 7 AC 400
Category: Principal judgment
Parties: Darren Ackerley (Plaintiff)
Charlene Felton (Defendant)
Representation: S J Chapple (Plaintiff)
D W Elliott (Defendant)
Legal Aid Commission of NSW (Plaintiff)
McIntosh Barr & Gordon (Defendant)

File Number(s): SC296455 of 2008
Publication restriction: None

Judgment

These reasons concern the question as to whether a note found in the shirt pocket of the late Kevin Ackerley shortly after he died on 5 June 2007 should be admitted to probate as an informal will under s 18A of the Probate and Administration Act 1898. For convenience, and without intending any disrespect, I will refer to the deceased as "Kevin" and to other members of his family and…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Ackerley v Felton

Details

AGLC: Ackerley v Felton [2012] NSWSC 1468
Case: [2012] NSWSC 1468
Decision Date: 04 December 2012

CaseChat Overview and Summary

The case of Ackerley v Felton involved a dispute regarding the validity of an informal will left by the deceased, Mr Ackerley. The primary contention was whether the document in question constituted a will and if it accurately reflected the deceased's genuine testamentary intentions. The matter was heard in the Supreme Court of New South Wales. The respondents, Mr and Mrs Felton, argued that the document was not a valid will, while the applicant, Mr Ackerley's daughter, contended that it was.

The central legal issues the court needed to address were whether the document could be considered a valid will and if it truly represented the deceased's testamentary intentions. Additionally, the court had to determine if Mr Ackerley was of sound mind when he executed the document. The case hinged on the interpretation of the document and the mental capacity of the deceased at the time of its creation. The court needed to establish if the document met the requirements for an informal will under Australian law and if the deceased had the requisite mental capacity.

The court examined the content of the document and the circumstances surrounding its creation. It concluded that the document constituted a valid informal will, embodying the deceased's testamentary intentions. The court found that Mr Ackerley was of sound mind when he executed the document, as there was no evidence to suggest otherwise. Consequently, the court ruled in favour of the applicant and appointed a guardian to facilitate the granting of the will. The court's decision ensured that the deceased's wishes were honoured, and his estate was distributed according to his intentions.

Orders