Court of Appeal
Supreme Court
New South Wales
- Summary available
Medium Neutral Citation: Battenberg v Phillips [2020] NSWCA 249 Hearing dates: 26 August 2020 Date of orders: 9 October 2020 Decision date: 09 October 2020 Before: Macfarlan JA at [1];
Meagher JA at [2];
Emmett AJA at [3]Decision: Order that:
1. The appeal be dismissed.
2. The appellant pay the costs of the respondents on the ordinary basis.
3. The costs of the respondents on the indemnity basis be paid out of the Estate of Blanch Minnie Condon, except to the extent that the respondents recover costs from the appellant.
Catchwords: SUCCESSION — Contested probate — Lack of knowledge and approval — Suspicious circumstances — Actual knowledge — Reading will aloud before execution — Sufficiency of evidence
Cases Cited: Re Fenwick [1972] VR 646
Category: Principal judgment Parties: Andrew Battenberg (Appellant)
Bruce Keith Phillips (First Respondent)
Robyn Ruth Price (Second Respondent)Representation: Counsel:
Solicitors:
D Allen (Appellant)
C Harris SC (Respondents)
Russo & Partners Pty Ltd (Appellant)
Diamond Conway Lawyers (Respondents)
File Number(s): 2020/62409 Decision under appeal
- Court or tribunal:
- Supreme Court of New South Wales
- Jurisdiction:
- Equity – Probate List
- Citation:
- Date of Decision:
- 30 January 2020
- Before:
- Henry J
- File Number(s):
- 2017/33495
HEADNOTE
[This headnote is not to be read as part of the judgment]
A woman died of an illness at the age of 86 in 2018 (the Testatrix). By a will made in 2016 (the 2016 Will), the Testatrix appointed the two respondents as her executors. The grant of probate of the 2016 Will was opposed by the Testatrix’s nephew, the appellant, being the adopted son of the Testatrix’s late brother.
Before the Testatrix executed the 2016 Will, her earlier will made a legacy of $50,000 to the appellant. The 2016 Will removed the $50,000 legacy and provided that the residue of the estate be distributed equally between the respondents.
By statement of claim, the appellant challenged the grant of probate, against which the respondents filed a cross-claim seeking orders that probate in solemn form be granted to them in respect of the 2016 Will. The statement of claim was dismissed by consent, but the appellant maintained his defence to the cross-claim.
The relevant ground relied upon by the appellant was that the executors had failed to positively establish that the Testatrix knew and approved of the contents of the 2016 Will which was necessary because suspicious circumstances attended the execution of the 2016 Will. The complaint centred upon whether or not the Testatrix had read aloud the 2016 Will at the time of execution.
A judge of the Equity Division ordered probate of the 2016 Will be granted in solemn form, finding that there was evidence that the Testatrix gave instructions for the preparation of the 2016 Will and that she read it over before executing it. Thus, there was satisfactory evidence that the Testatrix had…
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- AGLC
- Battenberg v Phillips [2020] NSWCA 249
- Case
- [2020] NSWCA 249
- Decision Date
CaseChat Overview and Summary
The central legal issue before the Court of Appeal was whether the primary judge had erred in finding that the testatrix lacked the necessary knowledge and approval of the contents of her will at the time of its execution. This involved considering whether the circumstances surrounding the preparation and execution of the will were sufficiently suspicious to raise a presumption against its validity, and if so, whether that presumption had been adequately rebutted by the evidence.
The Court of Appeal affirmed the primary judge's findings, holding that the circumstances surrounding the will's execution were indeed suspicious. These suspicions were not adequately dispelled by the evidence presented. Specifically, the Court noted that the reading of the will aloud to the testatrix before execution, while a relevant factor, was not in itself sufficient to establish knowledge and approval, particularly given other concerning aspects of the evidence. The Court applied the principles relating to suspicious circumstances in contested probate matters, emphasizing the onus on the propounder of a will to prove due execution, knowledge, and approval when such circumstances exist.
Consequently, the Court of Appeal dismissed the appeal. The appellant was ordered to pay the costs of the respondents on the ordinary basis. Furthermore, the costs of the respondents incurred on an indemnity basis were to be paid out of the Estate of Blanch Minnie Condon, to the extent that they were not recovered from the appellant.
Orders
Orders of the court
Order that:
1. The appeal be dismissed.
2. The appellant pay the costs of the respondents on the ordinary basis.
3. The costs of the respondents on the indemnity basis be paid out of the Estate of Blanch Minnie Condon, except to the extent that the respondents recover costs from the appellant.
Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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