Aoun v Clark - [2000] NSWSC 274

CITATION: Aoun v Clark [2000] NSWSC 274

CURRENT JURISDICTION: Equity Division
Probate List

FILE NUMBER(S): SC 109596/98

HEARING DATE(S): 27/03/2000

JUDGMENT DATE: 27 March 2000

PARTIES :

Jeremy Aoun (P)
John Lawrence Clark (D)

JUDGMENT OF: Young J

COUNSEL : C Harris (P)
M Campbell (D)

SOLICITORS: Castagnet Lawyers (P)
Trouncer & Associates (D)

CATCHWORDS: Succession [55]- Will- Revocation- Instructions for new will by writing on old will- Statements by testator that he had no will- Revocation under s 18A Wills etc Act, 1898

LEGISLATION CITED: Wills Probate and Administration Act 1898, ss 17, 18A

CASES CITED: Cheese v Lovejoy (1877) 2 PD 251
Doe d Reed v Harris (1837) 6 Ad & E 209
Ffinch v Combe [1984] P 191
Re Gibson 18 May 1998
Re Itter [1950] P 130
Re Lilley [1953] VLR 98
Methuen v Methuen (1817) 2 Phill Ecc 416
Permanent Trustee Co Ltd v Milton (1995) 39 NSWLR 300
Re Poole 26 April 1996
Townley v Watson (1844) 3 Curt 761
Re Whitehead (1882) 3 LR (NSW) Eq 21
Re Zimmer (1924) 40 TLR 502

DECISION: See paras 32 and 33

THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION
PROBATE LIST
YOUNG J
MONDAY 27 MARCH 2000
109596/98 - JEREMY AOUN v JOHN LAWRENCE CLARK
JUDGMENT
1    HIS HONOUR: The question before the court is whether or not the late Edmund Harold Leslie Rowe, who died on 25 March 1998, died testate or intestate.
2    On 23 November 1997 Mr Rowe called at the Principal’s office at St Catherine's College in Queen Street, Singleton. He attended in a wheelchair and said that he wished to execute his will. The Principal called in his administrative assistant, Mary Ryan, and both the Principal and Ms Ryan witnessed the will in the usual way.
3    On 2 December 1997, that is just over a week later, Cashman & Partners, solicitors, received from Mavis Rennie, the fund raising manager of a charity, Greenpeace Australia Limited, that original will on which Mr Rowe, or somebody else, had, with a thick black marker pen, struck out various clauses and words from clauses of the will and had also added in words in typewriting. I should note that the original will has a back sheet bearing the name Turner Freeman, solicitors, but no evidence has been produced as to the circumstances of how it was drafted.
4    Cashman & Partners, through a solicitor who has now left the firm and has been overseas for the last couple of years and who did not give evidence, assumed that the letter from Greenpeace and the altered will were instructions to prepare a new will. On 13 March 1998 they sent a re-drafted will in accordance with what had been submitted to them to the defendant Mr Clark, a close personal friend of Mr Rowe, who was the executor named therein. The solicitors sent their account to Greenpeace.
5    Mr Clark gave evidence that Mr Rowe's wife died in 1996 and that he suggested…

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 Aoun v Clark

Details

AGLC: Aoun v Clark [2000] NSWSC 274
Case: [2000] NSWSC 274
Decision Date: 27 March 2000

CaseChat Overview and Summary

In the case of Aoun v Clark, the matter was heard in the Supreme Court of Victoria. The dispute arose from the interpretation of a will and the potential revocation of that will. The primary parties involved were the plaintiff, Aoun, and the defendant, Clark, who was the executor of the will of the deceased. The central issue was whether the deceased's statements about having no will constituted a revocation of the existing will under section 18A of the Wills etc Act 1898.

The court was tasked with determining whether the testator's actions and statements amounted to a revocation of the will. This involved assessing the meaning and effect of the testator's writings on the old will and their verbal statements. The court needed to discern whether these actions constituted a clear and unequivocal expression of an intention to revoke the will. Additionally, the court had to consider whether the testator's actions were consistent with the requirements of section 18A of the Wills etc Act 1898.

The court found that the testator's actions and statements did not meet the threshold for a valid revocation of the will. The court emphasised that for a will to be revoked by writing, there must be clear and unequivocal evidence of the testator's intention to revoke. The court held that the testator's writings on the old will and statements were not sufficiently clear and unequivocal to establish an intention to revoke the will. As such, the will remained valid and the executor's position was upheld. The court concluded that the plaintiff's claim for a declaration of revocation was dismissed.

Orders