Bannister v Perpetual Trustee Co Ltd - [2008] NSWSC 1283

CITATION: Bannister v Perpetual Trustee Co Ltd; Estate of Mascot Zita Blake deceased [2008] NSWSC 1283

HEARING DATE(S): 17 November 2008

JURISDICTION: Equity Division
Probate List

JUDGMENT OF: Young CJ in Eq

EX TEMPORE JUDGMENT DATE: 17 November 2008

DECISION: Plaintiff entitled to a grant of probate in solemn form of the will of 24 December 2002. Plaintiff's costs to be paid out of the estate on the indemnity basis. First defendant's costs to be paid out of the estate on the party and party basis and second defendant's costs to be paid out of the estate on a submitting basis.

CATCHWORDS: SUCCESSION [10]- Whether a document was intended by the testatrix to constitute a new will or a revocation of an earlier will- Limited evidence of testatrix's acknowledgement of document- Testatrix's previous will drawn up by solicitors- Document as a whole sets out the testatrix's thoughts rather than firm disposition of property- Held that document lacks characteristics of a testamentary instrument- Insufficient evidence to show that document intended to revoke the earlier will.

LEGISLATION CITED: Succession Act 2006, s 8
Supreme Court Act 1970, s 63
Wills, Probate & Administration Act 1898, ss 17, 18A

CATEGORY: Principal judgment

CASES CITED: Aoun v Clark [2000] NSWSC 274
Permanent Trustee Co Ltd v Milton (1995) 35 NSWLR 330
Re Masters (1994) 33 NSWLR 446

PARTIES: John Herbert Bannister (P)
Perpetual Trustee Company Limited as Financial Manager for Paul Jonathan Blake (D1)
Dustin Blake (D2)

FILE NUMBER(S): SC 110753/07

COUNSEL: B Townsend (P)
L Ellison SC and L Ang (D1)
P Kennedy (S) (Submitting Appearance) (D2)

SOLICITORS: Martin Place Lawyers (P)
TressCox Lawyers (D1)
Mooney & Kennedy Solicitors (D2)

IN THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION
PROBATE LIST

YOUNG CJ in EQ

Monday 17 November 2008

110753/07 – BANNISTER v PERPETUAL TRUSTEE COMPANY LIMITED; ESTATE OF MASCOT ZITA BLAKE DECEASED

JUDGMENT

1 HIS HONOUR: These are proceedings for the plaintiff to obtain a grant of probate in solemn form of the will of the late Mascot Zita Blake which was made on 24 December 2002. Mrs Blake died on 14 May 2007. At the hearing today Mr B Townsend appeared for the plaintiff, Mr L Ellison SC and Mr L Ang appeared for the first defendant, and Mr P Kennedy, solicitor, who had filed a submitting appearance, appeared for the second defendant.

2 Were it not for a document of 15 February 2005, which the defendants say should be held to constitute Mrs Blake's last will pursuant to s 18A of the Wills, Probate and Administration Act 1898, there would be no doubt that probate should be granted of the 2002 will. However, the document of February 2005 at least purported to revoke the 2002 will.

3 The late Mrs Blake was divorced. She had one child, a son, Paul. Paul was an actor who suffered a horrendous accident which resulted in him becoming a quadriplegic and he lives in virtually a vegetative state. Paul received a large…

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: [2008] NSWSC 1283
Decision Date: 17 November 2008

CaseChat Overview and Summary

The case of Bannister v Perpetual Trustee Co Ltd involved a dispute over the validity of a document which the respondent claimed was the deceased's last will and testament. The applicant, who was the executrix of the deceased's prior will, argued that the document did not constitute a valid will and, if it did, it had been revoked. The matter was heard in the Supreme Court of Queensland. The central legal issue before the court was whether the document in question was intended by the testatrix to constitute a new will or to revoke her earlier will. The court was required to determine whether the document was a testamentary instrument and, if so, whether it effectively revoked the earlier will.

The court examined the document in its entirety and considered the limited evidence of the testatrix's acknowledgment of the document. The testatrix had previously engaged solicitors to draft her will, which was in a more formal format. The court found that the document in question was more of a personal reflection of the testatrix's thoughts rather than a firm disposition of her property. The court held that the document lacked the characteristics of a testamentary instrument and there was insufficient evidence to show that the testatrix intended the document to revoke the earlier will. The court found that the document did not constitute a valid will or revocation of the earlier will.

The court's decision was that the document in question did not constitute a testamentary instrument and there was insufficient evidence to show that it was intended to revoke the earlier will. Consequently, the earlier will remained valid and the respondent's claim was dismissed. The court ordered that the applicant, as executrix of the earlier will, was to proceed with the administration of the deceased's estate in accordance with that will.

Orders