Barndon v Chelvanayagam

Case [2006] WASC 118


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…

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Barndon v Chelvanayagam [2006] WASC 118
Case
[2006] WASC 118
Decision Date

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.

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