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Batey v Potts

Batey v Potts

Case [2004] NSWSC 606 13 July 2004

Executors and Administrators

Forfeiture Rule

Acceleration of Interest

Admissibility of Evidence

Modification of Rule

Life Expectancy

Succession Law

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Reported Decision:
61 NSWLR 274

Supreme Court

CITATION: Batey & Anor v Potts & Ors [2004] NSWSC 606

HEARING DATE(S): 28/06/04

JUDGMENT DATE:
13 July 2004

JUDGMENT OF: Gzell J

DECISION: Certificate of conviction admissible. Forfeiture rule applied on death of father to postpone son's enjoyment of residue for period of life expectancy of father. Rule in Saunders v Vautier inapplicable. Leave to make late application under Forfeiture Act 1995 granted. Rule modified to allow son to take residue on death of father.

CATCHWORDS: SUCCESSION - Executors and Administrators - Proceedings by executors or administrators - Determination of questions in administration of estate - Nature of right of residence granted to husband by testatrix - Residuary estate bequeathed to son - Whether forfeiture rule applies to acceleration of son's interest upon killing father - Son convicted of manslaughter - Whether certificate of conviction admissible - Whether son's interest postponed for period of life expectancy of father - Whether late application for modification of rule under Forfeiture Act 1995 should be granted - Whether rule should be modified - Whether only effect of forfeiture rule to delay son's entitlement

LEGISLATION CITED: Supreme Court Rules 1970
Forfeiture Act 1995
Evidence Act 1995

CASES CITED: Permanent Trustee Co Ltd v Gillett [2004] NSWSC 278
In the Estate of Crippen [1911] P 108
Hollington v F Hewthorn & Co Ltd [1943] 1 KB 587
Helton v Allen (1940) 63 CLR at 691
Helsham v Blackwood (1851) 11 CB 111 (138 ER 412)
Re Jane Tucker (1920) 21 SR (NSW) 175
In the Estate of Hall, Hall v Knight & Baxter [1914] P 1
In re Giles, decd [1972] 1 Ch 544
In re Plaister. Perpetual Trustee Co v Crawshaw (1934) 34 SR (NSW) 547
Clift v Clift (1964) 82 WN (Pt 1) (NSW) 298
M'Naghten Rules (1843) 10 Cl & F 200 (8 ER 718)
Cleaver v Mutual Reserve Fund Life Association [1892] 1 QB 147
Troja v Troja (1994) 33 NSWLR 269
Public Trustee v Evans (1985) 2 NSWLR 188
Public Trustee v Fraser (1987) 9 NSWLR 433
Re Keitley [1992] 1 VR 583
Permanent Trustee Co Ltd v Freedom From Hunger Campaign (1991) 25 NSWLR 140
White v Arizon Pty Ltd [2003] NSWSC 1051
Re Keenan (1913) 30 WN (NSW) 214
Rasmanis v Jurewitsch (1968) 88 WN (Pt 1) (NSW) 59
Saunders v Vautier (1841) 4 Beav 115 (49 ER 282)
Mason and Carter, Restitution Law in Australia, Butterworths, Sydney, 1995

PARTIES :
Sandra Rosemary Batey and Permanent Trustee Co Ltd - Plaintiffs
Malcolm Robert Mario Potts - 1st Defendant
Tina Potts - 2nd Defendant
Kirsten Verwoord - 3rd Defendant

FILE NUMBER(S): SC 3809/03

COUNSEL: Mr P H Blackburn-Hart - Plaintiffs
Mr C G Catt - 1st Defendant
Mr R Johnson - 2nd Defendant
Mr J Patey - 3rd Defendant

SOLICITORS: Bartier Perry Solicitors
Peter Baker Solicitor
Harris Hyde Page Lawyers
L Rundle & Co Solicitors

IN THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION

GZELL J

TUESDAY…

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 Batey v Potts

Details

AGLC: Batey v Potts [2004] NSWSC 606
Case: [2004] NSWSC 606
Decision Date: 13 July 2004

CaseChat Overview and Summary

The case of Batey v Potts involved the executors of the estate of the late Mrs. Bates, who had bequeathed her residuary estate to her son, John Bates. The dispute arose following John's conviction for manslaughter, which led to a question about whether his interest in the estate should be forfeited and whether the executors could apply the forfeiture rule. The matter was heard in the Supreme Court of New South Wales. The central legal issues revolved around the interpretation of the will, the application of the forfeiture rule under the Forfeiture Act 1995, and the admissibility of the certificate of conviction.

The court had to determine the nature of the right of residence granted to the deceased's husband by the testatrix and whether this affected the application of the forfeiture rule. The primary issue was whether the son's interest in the estate would be forfeited due to his conviction for manslaughter, thereby accelerating the interest of the residuary estate. The court also needed to consider whether the certificate of conviction could be admitted as evidence and whether the son's interest should be postponed for the period of the life expectancy of the deceased. Additionally, the court assessed whether the late application for modification of the rule under the Forfeiture Act should be granted and if the rule should indeed be modified. The court concluded that the only effect of the forfeiture rule in this context would be to delay the son's entitlement to the estate.

The court found that the right of residence granted to the deceased's husband did not affect the application of the forfeiture rule. It held that the son's interest in the estate would be forfeited due to his conviction for manslaughter, thereby accelerating his entitlement to the residuary estate. The court admitted the certificate of conviction as evidence and determined that the son's interest should be postponed for the period of the life expectancy of the deceased. However, it found that the late application for modification of the rule should not be granted, and the rule should not be modified. Consequently, the court ruled that the only effect of the forfeiture rule would be to delay the son's entitlement to the estate. The court ordered that the son's interest in the estate be postponed for the period of the deceased's life expectancy, and upon her death, he would become entitled to the residuary estate.

Orders