Aileen Barbara Fotiadis v Mervyn Patrick Jinks - [2002] NSWSC 420

CITATION: Aileen Barbara Fotiadis v Mervyn Patrick Jinks & Anor [2002] NSWSC 420

CURRENT JURISDICTION: Equity Division

FILE NUMBER(S): SC 1235/02

HEARING DATE(S): 06/05/2002

JUDGMENT DATE: 6 May 2002

PARTIES :

Aileen Barbara Fotiadis (Plaintiff)
Mervyn Patrick Jinks (First Defendant)
Karen Jinks (Second Defendant)

JUDGMENT OF: Bergin J

COUNSEL : J Azzi (Plaintiff)
M S Willmott (First Defendant)
Y Holt (Second Defendant)

SOLICITORS: S S Shotter (Plaintiff)
E R L Butler (First Defendant)
M McKenzie (Second Defendant)

CATCHWORDS: [WILLS] - construction - printed form - made without legal advice - whether in the context of the will "personal estate" includes real property - whether second defendant entitled to participate in proceeds of sale of real property.

CASES CITED: Bailey, In Re; Barrett v Hyder (1951) Ch 407
Cook, In Re; Beck v Grant [1948] Ch 212
Cox (Deceased), Re (1967) Qd R 173
East, Re (1964) QWN 16
Hall v Hall [1891] 3 Ch 389
Harrison, Re; Turner v Hellard (1885) 30 Ch D 390
Perrin v Morgan [1943] AC 399
Roddy v Fitzgerald (1858) 6 HL Cas 823

DECISION: See [26] and [27].

- 10 -

IN THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION

BERGIN J

6 MAY 2002

1235/02 AILEEN BARBARA FOTIADIS V MERVYN PATRICK JINKS & ANOR

JUDGMENT

1 This is a will construction case. The plaintiff and the first defendant are executors and the second defendant is a beneficiary under the will of the late Ivy Elizabeth Jinks who died on 14 February 2001. Probate of the will was granted on 18 July 2001 to the plaintiff and the first defendant.

2 The deceased’s will, made on 27 November 1998, was on a printed form and is in the following terms:

“This is the last will and testament of me, Ivy Elizabeth Jinks of 284 Fullerton Street, Stockton, in the State of New South Wales. I give, devise and bequeath all my personal estate and goods and $15,000 invested in Commonwealth Bank to:

Mervyn Patrick Jinks, Taralba Road, Adamstown,
Aileen Barbara Fotiadis, Flat 1, Billyard Avenue, Elizabeth Bay,
Gloria Kay Bower, Wurley Drive, Wurtulla, Queensland,
Karen Jinks, 33 Milson Street, Charlestown.

I direct payment of all my just debts, testamentary and funeral expenses.

3 There is no issue between the parties that the deceased did not have legal advice in respect of the making of this will. It is submitted that if there had been legal advice, a lawyer would have completed or corrected “execut” to read “executors”, “executrix and executor” or a relevant word to describe both Mr Jinks and Ms Fotiadis.

4 Within the Probate, (Ex A), is the inventory of property of the estate of the deceased. That includes a description of the property owned solely by the deceased as follows:

Real property, 284 Fullerton Street, Stockton, being whole of the property in Folio Identifier…

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.

Keep reading for free

Create a free CaseChat account to read Aileen Barbara Fotiadis v Mervyn Patrick Jinks and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2002] NSWSC 420
Decision Date: 6 May 2002

CaseChat Overview and Summary

The case before the court involved Aileen Barbara Fotiadis, the plaintiff, who sought a declaration that she was entitled to the proceeds from the sale of certain real property and an account of those proceeds. The defendants, Mervyn Patrick Jinks and another, contested the plaintiff's claims. The dispute arose from the interpretation of a will and the distribution of the estate, specifically focusing on whether the term "personal estate" included real property and whether the second defendant had any right to participate in the proceeds of the sale of such property.

The central legal issues for the court to determine were the interpretation of the term "personal estate" within the context of the will and the extent of the second defendant's entitlement to any proceeds from the sale of the real property in question. The court had to consider whether the will's provisions were clear enough to resolve these issues without requiring further evidence or interpretation.

The court found that the will, although drafted without legal advice, contained clear provisions regarding the distribution of the estate. The term "personal estate" was interpreted to include the real property in question, and as such, the second defendant had no entitlement to participate in the proceeds from its sale. The court emphasised the importance of interpreting the will in its entirety and in the context in which it was made, rather than focusing on individual words or phrases. The court's reasoning led to a decision in favour of the plaintiff, Aileen Barbara Fotiadis, who was granted the relief sought regarding the proceeds of the sale.

The final orders of the court declared that Aileen Barbara Fotiadis was entitled to the proceeds from the sale of the real property in question and ordered the second defendant to account for any proceeds received. The court further ordered that the second defendant was not entitled to any participation in those proceeds.

Orders