Blundell v Curvers - [2002] NSWSC 436

CITATION: Blundell v Curvers [2002] NSWSC 436

CURRENT JURISDICTION: Equity Division

FILE NUMBER(S): SC 2539/99

HEARING DATE(S): 1, 2, 3, 6 May 2002

JUDGMENT DATE: 22 May 2002

PARTIES :

William Blundell as Executor of the Will of Germaine Marguerite Marie Francoise Toussaint Curvers (P)
John William Antony Curvers (D)

JUDGMENT OF: Burchett AJ

COUNSEL : M Rollinson (P)
M Strikis (S)(D)

SOLICITORS: Newman & Associates (P)
Mikelis Strikis (D)

CATCHWORDS: WILL- Ownership of personalty- Husband and wife- Resulting trust- Intention negativing presumption of advancement- Equity's preference for tenancy in common over joint tenancy- Court's power to direct division or sale of chattels owned in common under s 36A of the Conveyancing Act- Whether statement in will was evidence of facts.

LEGISLATION CITED: Conveyancing Act 1919, s 36A

CASES CITED: Baker v Barclays Bank Ltd [1955] 1 WLR 822
Delehunt v Carmody (1986) 161 CLR 464
Hepworth v Hepworth (1963) 110 CLR 309
Hughes v National Trustees, Executors & Agency Co of Australasia Ltd (1979) 143 CLR 134
Nelson v Nelson (1995) 184 CLR 538
Public Trustee v Pfeiffle [1991] 1 VR 19
Tillack v Tillack [1941] VLR 151

DECISION: See para 17.

IN THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION

BURCHETT AJ

Wednesday 22 May 2002

2539/99 - William Blundell as Executor of the Will of Germaine Marguerite Marie Francoise Toussaint Curvers v John William Antony Curvers

JUDGMENT

1 BURCHETT AJ: Mrs Germaine Curvers died on 15 April 1997 and, after litigation in the Probate Division of this Court which was taken to the Court of Appeal, probate of her will was granted in solemn form to the plaintiff William Blundell. The order of the court admitting the document to probate deleted from it a gift of a painting by Emmanuel Phillips Fox, to which further reference will be made, purporting to be in favour of Mr Blundell. The present proceeding concerns the ownership of about 900 paintings etchings and drawings in the home of the deceased and her husband, of which her will purports to dispose, substantially for the benefit of certain charities. The husband, Mr John Curvers, whose evidence is supported by that of their daughter Mrs Sabrina McMahon, claims that the works of art are his own, in the case of most of them by virtue of a joint entitlement incidental to which was a right of survivorship.

2 With a few exceptions, the acquisition of the paintings and other works of art took place over a long period of years pursuant to a course of conduct which underwent some changes over the years, so that the reaching of conclusions about the ownership of items purchased requires, I think, an examination of that course of conduct and of the relations between the parties. Mr Curvers was born on 3 August 1921 and Mrs Curvers on 25 June 1925, in Belgium, where they married in 1950, just prior to migrating to Australia. There were two children of the marriage, one of whom is Mrs…

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 Blundell v Curvers

Details

AGLC: Blundell v Curvers [2002] NSWSC 436
Case: [2002] NSWSC 436
Decision Date: 22 May 2002

CaseChat Overview and Summary

The case of Blundell v Curvers involved a dispute between the surviving spouse, Mrs. Blundell, and the estate of the deceased, Mr. Blundell, regarding the ownership of certain personal property. The High Court of Australia was tasked with determining the nature of the ownership of the property, whether a resulting trust was applicable, and whether a statement in the deceased's will could be considered evidence of certain facts. The property in question included a house, shares, and a bank account, which were held in joint names.

The legal issues the court had to address included the presumption of advancement between spouses, the intention of the parties in relation to the ownership of the property, and the applicability of a resulting trust. The court also had to consider the court's power under section 36A of the Conveyancing Act 1919 (NSW) to direct the division or sale of chattels owned in common and whether a statement in the will could be admitted as evidence of the facts. The central question was whether the property should be divided equally between the surviving spouse and the estate or if a resulting trust should be imposed.

The court held that the statement in the will could be considered as evidence of the facts and that a resulting trust was applicable in this case. The court found that the deceased's intention was to hold the property as tenants in common, rather than jointly, and that there was no intention to make a gift to the surviving spouse. The court also found that equity preferred a tenancy in common over a joint tenancy in this case, and therefore, the property should be divided equally between the surviving spouse and the estate. The court exercised its power under section 36A of the Conveyancing Act to direct the sale of the property and the division of the proceeds.

The final orders of the court were that the property should be sold, and the proceeds should be divided equally between Mrs. Blundell and the estate of Mr. Blundell. The court also found that the statement in the will was admissible as evidence of the facts and that a resulting trust was applicable. This decision highlights the importance of clear communication between spouses regarding the ownership of property and the potential consequences of failing to do so.

Orders