and LORRAINE HELEN FOGARTY - [2007] ACTSC 24

In the matter of the Estate of IAN PATRICK FOGARTY

EMMA ROSE KOVACS v GREGORY PATRICK FOGARTY

and LORRAINE HELEN FOGARTY

[2007] ACTSC 24 (20 April 2007)

PROBATE – Letters of administration – lost will – whether a will existed – lack of evidence of will – wife, as lawful widow, entitled to estate.

Administration and Probate Act 1929 (ACT), Division 3A
Wills Act 1968 (ACT), s 11
Evidence Act 1995 (Cth), s 63, s 67

Curley v Duff (1985) 2 NSWLR 716

Briginshaw v Briginshaw (1938) 60 CLR 336

Cahill v Rhodes [2002] NSWSC 561

Birmingham v Renfew (1936-1937) 57 CLR 666

In the Estate of Ralston (unreported, Supreme Court of NSW Probate Division, BC 9604329)

Whiteley v Clune (No 2) The Estate of Brett Whiteley (unreported, Supreme Court of NSW Probate Division, BC 9301902)

Sugden v Lord St Leonards [1874-80] All E Rep 21

In the Goods of Herbert Calthorpe Gardner Esq (deceased) (1858) SW & TR 109

Curley v Duff (1985) 2 NSWLR 716

Re Estate of Mary Anne Moore Deceased (unreported, Supreme Court of NSW Probate Division, BC 9201738)

Re Webb (deceased) [1964] 2 All E R 91

Cahill v Rhodes [2002] NSWSC 561

Re Estate of Paul Frances Hodges Deceased; Shorter v Hodges (1988) 14 NSWLR 698

No. P 374 and 410 of 2006

Judge: Connolly J
Supreme Court of the ACT

Date: 20 April 2007

IN THE SUPREME COURT OF THE       )
  )          No. P 374 and 410 of 2006
AUSTRALIAN CAPITAL TERRITORY    )

In the matter of the Estate of IAN PATRICK FOGARTY deceased late of 30/47 Blackall Street, Barton in the Australian Capital Territory
BETWEEN:EMMA ROSE KOVACS
Plaintiff

AND:GREGORY PATRICK FOGARTY and LORRAINE HELEN FOGARTY
Defendants

ORDER

Judge:  Connolly J
Date:  20 April 2007
Place:  Canberra

THE COURT DECLARES THAT:

The deceased died intestate.
THE COURT ORDERS THAT:
Claim P 374/06 be dismissed.
The plaintiff in claim P 410/06, as the lawful wife at the time of the deceased’s death, be entitled to the relief she seeks.

The parties be heard on costs.

This matter arises from the tragic death of an otherwise healthy young man, Mr Ian Patrick Fogarty, who died on 6 June 2006, three days after sustaining an injury in a game of football. He was only 29 years of age at his death. Mr Fogarty had married Ms Emma Kovacs in March 2004, some two years and three months before his death. Their marriage had difficulties and there were separations and reconciliations, but it is common ground that she had left the joint residence in April 2006. Both parties had engaged solicitors to discuss their affairs with a view to a divorce and property settlement. At the time of Mr Fogarty’s death there had been no divorce and Ms Kovacs is his lawful widow.

Following Mr Fogarty’s death, competing applications have been lodged in this Court in relation to his affairs. On 21 July 2006, his parents brought an application (matter P 374/06) for letters of…

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.

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Details

Case: [2007] ACTSC 24
Decision Date: 20 April 2007

CaseChat Overview and Summary

The matter involved a dispute over the estate of a deceased person, with the plaintiff seeking letters of administration and the defendant contesting this on the grounds that a will existed which had not been produced. The case was heard in the Supreme Court of South Australia. The central issue was whether a will existed and if the plaintiff, the deceased's wife, was entitled to the estate as his lawful widow. The court had to determine if the onus of proving the existence of a will lay with the defendant and whether the lack of evidence of a will justified granting the plaintiff the relief sought.

The court considered the applicable law and legal principles concerning the proof of wills and the rights of a surviving spouse. It noted that the onus of proving the existence of a will lies on the party asserting it. The court found that the defendant had not discharged this burden of proof and, given the absence of any evidence of a will, concluded that the deceased died intestate. The court held that the plaintiff, as the lawful wife, was entitled to the estate in the absence of a valid will. The court dismissed the defendant's claim and ordered that the plaintiff be granted the relief she sought. The matter of costs was to be heard at a later date.

The court dismissed the defendant's claim for letters of administration and ordered that the plaintiff, as the lawful wife of the deceased, be entitled to the relief she seeks. The court further ordered that the parties be heard on the issue of costs. This decision underscored the importance of the burden of proof in will disputes and the rights of a surviving spouse in the absence of a valid will.

Orders

Orders of the court

1. The deceased died intestate. THE COURT ORDERS THAT: 1. Claim P 374/06 be dismissed. 2. The plaintiff in claim P 410/06, as the lawful wife at the time of the deceased's death, be entitled to the relief she seeks. 3. The parties be heard on costs.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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