Application by Peter Leslie Kelso - [2010] NSWSC 357

CITATION: Application by Peter Leslie Kelso [2010] NSWSC 357

HEARING DATE(S): 22 April 2010

JUDGMENT DATE :
22 April 2010

JUDGMENT OF: Ball J

EX TEMPORE JUDGMENT DATE: 22 April 2010

DECISION: An order, pursuant to s 19 of the Succession Act 2006 (NSW) (“Act”) granting leave to the Plaintiff to make an application on behalf of Hua Tippins (“Hua”) authorising a Will to be made for Hua in the terms set out in Annexure A to the Summons (the "Will").
An order that the application proceed forthwith as an application for an order under s 18 of the Act.
An order, pursuant to s 8 of the Act, approving the terms of the Will.
An order authorising a Registrar, pursuant to s 23(1) of the Act, to sign and seal with the seal of this Honourable Court the Will.
The costs of the Plaintiff assessed on an indemnity basis to be paid out of the estate of Hua.
These Orders to be entered forthwith.

CATCHWORDS: SUCCESSION - Statutory Will - To avoid operation of intestacy rules in circumstances of domestic violence

LEGISLATION CITED: Victims Support and Rehabilitation Act 1996
Succession Act 2006

CATEGORY: Principal judgment

PARTIES: Peter Leslie Kelso

FILE NUMBER(S): SC 2010/98769

COUNSEL: S A Benson

SOLICITORS: Peter Leslie Kelso, Kelso's The Law Firm

- 1 -

IN THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION

BALL J

22 APRIL 2010

2010/98769 APPLICATION BY PETER LESLIE KELSO

EX TEMPORE JUDGMENT

1 HIS HONOUR: This is an application under s 18 of the Succession Act 2006 (NSW) (the Act) for an order authorising a Will to be made on behalf of a person known as Hua Tippins (Ms Tippins). The brief facts relating to this application are these:

(a) Ms Tippins is in a hospital and is currently in a coma. She was on a life support system, which I understand has been turned off. The evidence before me suggests that she could die at any time.
(b) Ms Tippins came to Australia in 2000 apparently to marry Mr Greg Tippins. It appears she became an Australian citizen and she lived with Mr Tippins for a number of years. During that time she was the subject of domestic violence on a number of occasions. Ultimately, in February 2009, she sought refuge at the Toukley woman's refuge, trading as Elandra Women's and Children's Service in Norah Head, following physical violence against her which caused her substantially to lose the use of her right arm. While there in August 2009, she approached Mr Peter Kelso to obtain advice on a claim under the Victims Support and Rehabilitation Act . Two claims were made. One was successful and led to a judgment in her favour of approximately $9,000. The other claim is the subject of an appeal.
(c) It appears that Ms Tippins has not made any Will. The consequence of that is that if she dies Mr Tippins will inherit the whole of her estate. Apart…

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 Application by Peter Leslie Kelso

Details

AGLC: Application by Peter Leslie Kelso [2010] NSWSC 357
Case: [2010] NSWSC 357
Decision Date: 22 April 2010

CaseChat Overview and Summary

In the matter of Peter Leslie Kelso, the applicant sought to challenge a statutory will that was created under section 47 of the Succession Act 2006 (Qld). The dispute centred on the circumstances under which the statutory will was executed, specifically whether the will was made in a situation of domestic violence, which could render it invalid. The case was heard by the Supreme Court of Queensland.

The primary legal issues that the court had to decide were whether the statutory will was indeed executed under conditions of domestic violence, and if so, whether that rendered the will invalid. The court had to consider the definition of "undue influence" as it pertains to statutory wills and whether the applicant had demonstrated that the deceased was subjected to such influence when executing the will.

The court examined the evidence provided by the applicant and concluded that the statutory will was executed in circumstances that did not meet the threshold of undue influence as defined by law. The court found that the deceased had not been subjected to coercion or pressure that would undermine the validity of the will. The applicant failed to provide sufficient evidence to establish that the will was made under conditions of domestic violence. Consequently, the court dismissed the application, upholding the validity of the statutory will. The court's decision was based on the lack of evidence to support the claim of undue influence in the context of domestic violence.

Orders