Barns v Barns - [2001] SASC 303

BARNS v BARNS & ORS
[2001] SASC 303
Full Court: Prior, Lander and Wicks JJ

PRIOR J: I agree with the reasons given by Justice Lander. The appeal should be allowed and the declaration made that the Deed between Lyle Phillip Barns (deceased) and Alice Elizabeth Barns and Malcolm Phillip Barns dated 2 May 1996 is valid.
LANDER J. This is an appeal and cross appeal from a decision of a Master of this Court in which he made the following declarations and orders:
“1.The deed between Lyle Phillip Barns (deceased) and Alice Elizabeth Barns (second defendant) and Malcolm Philip Barns (first defendant) dated 2 May 1996 (the Deed) is void as being contrary to public policy.
2.The costs of the Plaintiff, the Claimants, the First Defendant (in his capacity as Executor/Trustee), and the Second Defendant relating to the determination of the validity of the Deed as taxed or agreed on an indemnity basis be paid out of the Estate to their respective solicitors.”
The second defendant has appealed against the declaration and order. The first defendant has also appealed by way of cross appeal against the declaration and order.
The notice of appeal and cross appeal raise common grounds. The cross appellant obtained leave to amend one of his grounds of appeal on the cross appeal. However, a concession made by the respondent makes it unnecessary to decide that ground.
It would be convenient to treat the first and second defendants as having common grounds and a common position.
The defendants appeal against the declaration and seek, as a consequence, the setting aside of the costs order. It is the contention of the defendants that the declaration that the deed between them and the deceased Lyle Phillip Barns dated 2 May 1996 is erroneous and should be set aside.
The plaintiff, who is the respondent to this appeal, is the daughter of Lyle Phillip Barns who died on 14 August 1998. The first defendant is the son of the deceased and is the executor of the deceased’s estate. The second defendant is the widow of the deceased, and the mother of the plaintiff and the first defendant. There are two infant claimants, being two children of the plaintiff.
The deceased died on 14 August 1998. He had executed his will on 2 May 1996. The will was admitted to probate on 14 January 1999. The first defendant is the executor of the estate. By his will the deceased left the whole of his estate to his wife. He made no provision for his daughter, the plaintiff or his son, the first defendant.
The deceased not only executed his will on 2 May 1996, but he also executed a deed in which he and the second defendant, covenanted to make mutual wills leaving their estate to each other. They further covenanted that the survivor of them would leave his or her estate to the first defendant. The first defendant was also a party to the deed.
The plaintiff’s…

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 Barns v Barns

Details

AGLC: Barns v Barns [2001] SASC 303
Case: [2001] SASC 303
Decision Date: 12 October 2001

CaseChat Overview and Summary

This case involves an appeal and cross-appeal against a decision of a Master of the Supreme Court of South Australia, who declared a Deed to be void as being contrary to public policy. The Deed in question was executed on 2 May 1996 between the deceased, Lyle Phillip Barns, and his widow Alice Elizabeth Barns, and their son Malcolm Phillip Barns. The deceased's daughter, the plaintiff, sought a declaration that the Deed was void and that it did not prevent her from making a claim for provision out of her father's estate under the Inheritance (Family Provision) Act 1972 (SA). The defendants, Alice and Malcolm, appealed against the Master's decision, arguing that the Deed was valid and created a trust in their favour.

The Court considered the effect of the Deed on the estate of the deceased and whether it precluded the plaintiff and her children from making a claim under the Act. The Court found that the Deed created a binding agreement between the parties to make mutual wills, which resulted in a floating trust after the death of the deceased. This trust prevented the surviving party from disposing of their assets in a manner inconsistent with the terms of the Deed. The Court held that the Deed was not contrary to public policy and was therefore valid.

In conclusion, the Court allowed the appeal and cross-appeal, setting aside the Master's declaration that the Deed was void and making a declaration that the Deed between Lyle Phillip Barns (deceased) and Alice Elizabeth Barns and Malcolm Phillip Barns dated 2 May 1996 is valid. The Court found that the Deed created a binding agreement between the parties to make mutual wills, which resulted in a floating trust after the death of the deceased. This trust prevented the surviving party from disposing of their assets in a manner inconsistent with the terms of the Deed. The Court held that the Deed was not contrary to public policy and was therefore valid.

Orders