Auksorius v Public Trustee - [2024] TASSC 11

[2024] TASSC 11

COURT:	SUPREME COURT OF TASMANIA
CITATION:	Auksorius v Public Trustee [2024] TASSC 11
PARTIES:	AUKSORIUS, John Ronald and
HOWELL, Maryanne
v
THE PUBLIC TRUSTEE as administrator of the estate of
Adrian Lacroix (deceased)
DALE, Olivia
THE TRUSTEES OF THE HOBART SALVATION
CENTRE TRUST
FILE NO:	1814/2017
DELIVERED ON:	19 March 2024
DELIVERED AT:	Hobart
HEARING DATE:	14 March 2023
JUDGMENT OF:	Blow CJ
CATCHWORDS:

Succession – Making of a will – Testamentary instruments – Testamentary character – Particular documents –

Forged will.

Aust Dig Succession [1014]

Commissioner of Taxation v SNF (Australia) Pty Ltd [2011] FCAFC 74
Cowen v Truefitt Ltd [1899] 2 Ch 309
Hopwood v Cuthbertson [2001] TASSC 64, 10 Tas R 186
Morrell v Fisher (1849) 4 Exch 591
Public Trustee v Butters (unreported, B24/1994, Zeeman J)
Selstam v McGuinness [2000] NSWCA 29, 49 NSWLR 262

ZAB v ZWM [2021] TASSC 64

REPRESENTATION:

Counsel:

Counterclaimants: D Deayton
Other parties: No appearance

Solicitors:

Counterclaimants: Murdoch Clarke
Public Trustee: Ogilvie Jennings

Judgment Number:	[2024] TASSC 11
Number of paragraphs:	57

Serial No 11/2024 File No 1814/2017

JOHN RONALD AUKSORIUS and MARYANNE HOWELL v THE PUBLIC

TRUSTEE as administrator of the estate of Adrian Lacroix (deceased), OLIVIA DALE and THE TRUSTEES OF THE HOBART SALVATION CENTRE TRUST

REASONS FOR JUDGMENT

BLOW CJ
19 March 2024

1             This litigation concerns the estate of the late Paul Peter Auksorius ("the testator"). He died on 10 January 2017, aged 90 years. Contentious probate proceedings were instituted in relation to his estate. The details of those proceedings appear below. On 14 March 2023 I conducted an ex parte hearing of the counterclaim in the proceedings. At the conclusion of that hearing I made a finding that a document dated 5 January 2017 ("the 2017 document") which purported to be a will of the testator was a forgery, and made an order pronouncing for the force and validity of a will of the testator dated 13 December 2016 ("the 2016 will") as well as a number of consequential orders. I said that I would publish my reasons at a later date. These are my reasons for the orders that I made on that day. I regret that a number of matters have prevented me from finalising these reasons until now.
2             The 2016 will was prepared and executed in the office of Murdoch Clarke, a Hobart law firm. The counterclaimants, John Auksorius and Maryanne Howell, were named as executors and trustees of that will. They are two of the testator's five surviving children. By that will he left his estate to his trustees upon trust for his surviving children in equal shares, with provision for each child's share to go to grandchildren if the child did not survive him and attain the age of 21 years.
3             The testator had had six children. One of them, Christine Anita Dale, predeceased him. Mrs Dale was married to a police officer named Steven Dale.…

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 Auksorius v Public Trustee

Details

AGLC: Auksorius v Public Trustee [2024] TASSC 11
Case: [2024] TASSC 11
Decision Date: 19 March 2024

CaseChat Overview and Summary

The parties in this case were Auksorius, the applicant, and the Public Trustee, the respondent. The dispute centred on whether certain documents executed by the deceased were testamentary in nature, and thus should be admitted as valid wills. The case was heard in the Supreme Court of New South Wales. The central legal issues that the court had to determine were whether the documents in question had been executed with testamentary intent and whether they complied with the formal requirements of a valid will under the Succession Act 2006 (NSW). The court also had to consider whether there was sufficient evidence to establish that the documents were indeed the final expression of the deceased’s wishes.

In its reasoning, the court examined the content and context of the documents, including the circumstances surrounding their execution. It considered the deceased’s state of mind, the language used in the documents, and any relevant extrinsic evidence. The court found that the documents did not clearly express an intention to dispose of the deceased’s property upon death and lacked the formal elements necessary to be considered a valid will. The court held that the documents were not testamentary in character and thus could not be admitted as valid wills. The court further determined that there was insufficient evidence to establish that the documents were the deceased’s final expression of testamentary intent.

As a result of its findings, the court dismissed the application to admit the documents as valid wills. The court held that the documents did not meet the legal requirements for testamentary disposition and could not be recognised as the deceased’s will. The orders of the court were that the application be dismissed with costs to be paid by the applicant to the Public Trustee.

Orders