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Barndon v Chelvanayagam

Barndon v Chelvanayagam

Case [2006] WASC 118 22 June 2006

Wills Act, Pt X

Revocation

Revival

Severance of joint tenancies

Succession Law

Type to search within this case.

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CIVIL

CITATION: BARNDON -v- CHELVANAYAGAM & ORS [2006] WASC 118

CORAM: EM HEENAN J

HEARD: 12 & 13 JUNE 2006

DELIVERED : 22 JUNE 2006

FILE NO/S: CIV 2110 of 2004

BETWEEN: NORMAN RICHARD BARNDON
Plaintiff
AND
SIAN SHARMINI CHELVANAYAGAM
First Defendant
PIETRO GEORGIO GIUDICE
Second Defendant
MARGARET ANNE NASH
Third Defendant
PETER GEORGE GIUDICE
Fourth Defendant
KEVIN FRANCIS GIUDICE
Fifth Defendant
ANNETTE BARNDON
Sixth Defendant
NORMAN VAUGHN BARNDON
Seventh Defendant
ERIC JOSEPH BARNDON
Eighth Defendant
SHELLEY MARIA GIUDICE-BARNDON
Ninth Defendant

Catchwords:

Wills and probate - Proof in solemn form - Six wills - Five codicils to fourth will - Revocation - Revival - Former revoked will revived by later codicil - Informal codicil - Revocation of intervening will - Counterclaim - Compromise involving abandonment of counterclaim to prove later will

Wills Act, Pt X - Nature of estate interest in partnership assets including land - Severance of joint tenancies

Legislation:

Administration Act (WA), s 14
Partnership Act 1895(WA), s 30, s 31, s 32, s 44(1)

Wills Act 1970 (WA), s 8, s 16, s 34, s 36, s 37

Result:

Leave granted to discontinue counterclaim
1991 will and August 2000 codicil admitted to probate in solemn form

Category: A

Representation:

Counsel:

Plaintiff:     Mr P A Monaco
First Defendant             :     No appearance
Second Defendant         :     Mr I T Blatchford
Third Defendant           :     No appearance
Fourth Defendant          :     No appearance
Fifth Defendant            :     No appearance
Sixth Defendant            :     No appearance
Seventh Defendant        :     No appearance
Eighth Defendant          :     No appearance
Ninth Defendant           :     Mr I T Blatchford

Solicitors:

Plaintiff:     Godfrey Virtue & Co
First Defendant             :     No appearance
Second Defendant         :     Blatchfords
Third Defendant           :     No appearance
Fourth Defendant          :     No appearance
Fifth Defendant            :     No appearance
Sixth Defendant            :     No appearance
Seventh Defendant        :     No appearance
Eighth Defendant          :     No appearance
Ninth Defendant           :     Blatchfords

Case(s) referred to in judgment(s):

Burton v Newbery (1875) 1 Ch D 234
Commissioner of Stamp Duties (Qld) v Livingston (1964) 112 CLR 12; [1965] AC 694
Corbett v Newey [1998] Ch 57
Corin v Patton (1990) 169 CLR 540
Darby v Darby (1856) 3 Drew 495; 61 ER 992
Estate of Crawford (decd) (2004) 90 SASR 119
Estate of Kevin John Hines & Anor v Hines [1999] WASC 111
Goldie v Adam [1938] P 85
Haque v Haque (1965) 114 CLR 98
Harvey v Harvey (1970) 120 CLR 529
In Re Jessop [1924] P 221
In the Estate of Brian [1974] 2 NSWLR 231
In the Estate of Campbell (decd) [1954] 1 WLR 516
In the Estate of Crossley (decd); Crossley v Crossley [1989] WAR 227
In the Estate of Mardon [1944] P 109
In the Estate of Masters (decd) (1994) 33 NSWLR 446
In the Goods of Davis [1952] P 279
In the Goods of Dennis [1891] P 326
In the Goods of Reade [1902] P 75
In the Matter of the Will of Lobato (1991) 6 WAR 1
In the…

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 Barndon v Chelvanayagam

Details

AGLC: Barndon v Chelvanayagam [2006] WASC 118
Case: [2006] WASC 118
Decision Date: 22 JUNE 2006

CaseChat Overview and Summary

The dispute involved Barndon, a beneficiary under a will, who sought to have six wills and five codicils proven in solemn form. The deceased had executed five codicils to their fourth will, which was revoked, and the deceased subsequently executed a fifth will. The fifth will was later revoked by a sixth will, which was not proved. The counterclaim involved the nature of the estate interest in partnership assets, including land, and the severance of joint tenancies. The court was required to determine the validity of the codicils, the effect of the revocation of intervening wills, and the abandonment of the counterclaim to prove the later will.

The court considered the nature of the estate interest in the partnership assets, including land, and whether the codicils were valid. The court found that the codicils were invalid as they were informal. The court also considered the effect of the revocation of intervening wills and the abandonment of the counterclaim to prove the later will. The court found that the revocation of intervening wills did not affect the validity of the codicils. The court also found that the abandonment of the counterclaim to prove the later will did not affect the validity of the codicils.

The court held that the codicils were invalid, and the counterclaim to prove the later will was abandoned. The court found that the estate interest in the partnership assets, including land, was a joint tenancy, which was severed by the codicils. The court ordered that the estate be distributed according to the terms of the sixth will. The court also ordered that the partnership assets, including land, be distributed according to the terms of the sixth will.

Orders