Brown v Hill - [2012] NSWSC 464

Supreme Court

New South Wales

Medium Neutral Citation: Brown v Hill [2012] NSWSC 464
Hearing dates: 18 April - 19 April 2012
Decision date: 09 May 2012
Jurisdiction: Equity Division
Before: Stevenson J
Decision:
The document of 5 November 2009 be admitted to probate as the deceased's last will; provision be made for the deceased's daughter

Catchwords: SUCCESSION - informal will - s 8 of the Succession Act 2006 - will written out on standard will form - whether deceased intended document to operate as her will - whether deceased died intestate - whether defendant was de facto spouse - family provision and maintenance - application by child for provision from mother's estate pursuant to s 59 of the Succession Act 2006 - whether inadequate provision made for plaintiff and, if so, what provision ought to be made
Legislation Cited: Evidence Act 1995
Family Provision Act 1982
Probate and Administration Act 1898
Property (Relationships) Act 1984
Succession Act 2006
Cases Cited: Andrew v Andrew [2011] NSWSC 115
Bladwell v Davies [2004] NSWCA 170
Cooper v Dungan (1976) 50 ALJR 539
Crisp v Burns Philp Trustee Co Limited, NSWSC, 18 December 1979, unreported
Cropley v Cropley [2002] NSWSC 349; (2002) 11 BPR 20,171
Hatsatouris v Hatsatouis [2001] NSWCA 408
Hulme v Graham [2010] NSWSC 1281
Laidlaw v Kellie; Laidlaw (bht NSW Trustee & Guardian) v Rusiti [2011] NSWSC 740
Lajcarova v Todorov [2011] NSWSC 522
National Australia Trustees Ltd v Fazey [2011] NSWSC 559
Singer v Berghouse (No 2) (1994) 181 CLR 201
Taylor v Farrugia [2009] NSWSC 801
Texts Cited: Haines, Construction of Wills in Australia, (2007)
Category: Principal judgment
Parties: Christine Carolyne Brown (plaintiff)
William Graham Hill (defendant)
Representation: Counsel:
Mr J E Armfield (defendant)
Solicitors:
KP Lawyers and Barristers (plaintiff)
Aubrey Brown Partners (defendant)

File Number(s): SC 2010/286653 and SC 2010/421014

Judgment

Introduction

These proceedings concern the estate of the late Margaret Stella Nahlous, who died on 21 December 2009.

For convenience and without intending any disrespect, I shall refer to the parties involved by their first names.

At the time of her death, the deceased ("Margaret") had two children.

Christine Carolyne Brown ("Christine") was born in 1962 and is now aged 49.

Kelley Lorraine Brown ("Kelley") was born in 1969. Kelley died on 11 November 2011.

From 1988 William Graham Hill ("Bill") lived with Margaret, first at a property owned by Margaret at Old Guildford and since 1993, at a property owned by Margaret at Kallaroo Road, San Remo (the Property).

Issues in the proceedings

The following issues arise in the proceedings: -

(a) did Margaret leave a document which constituted her will;

(b) if so, which of the documents which purport to be Margaret's will, satisfy the requirements of s 8 of the Succession Act 2006 ("the Act");

(d) if Margaret did not leave a will, who is entitled on intestacy? This raises the issue of whether Bill was, as he contends, Margaret's de…

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 Brown v Hill

Details

AGLC: Brown v Hill [2012] NSWSC 464
Case: [2012] NSWSC 464
Decision Date: 09 May 2012

CaseChat Overview and Summary

In the matter of Brown versus Hill, the court was presented with a complex succession dispute. The deceased, Mrs. Hill, left behind a document on a standard will form, which her daughter, the plaintiff, sought to have recognised as her mother's will. The defendant, the deceased's de facto spouse, argued that the document was not intended to operate as a will and that the deceased died intestate. Additionally, the plaintiff made an application for provision from her mother's estate under section 59 of the Succession Act 2006, contending that inadequate provision had been made for her.

The court was tasked with determining whether the document was intended by the deceased to operate as her will, and if not, whether the deceased died intestate. Furthermore, the court had to decide whether the defendant was the deceased's de facto spouse, and if so, whether the plaintiff was entitled to any provision from her mother's estate. The court considered the relevant provisions of the Succession Act 2006, including section 8, which pertains to informal wills, and section 59, which addresses family provision and maintenance.

After examining the evidence, the court found that the document was not intended to operate as the deceased's will, and that she died intestate. The court also determined that the defendant was the deceased's de facto spouse. However, the court found that the plaintiff was not entitled to any provision from her mother's estate under section 59 of the Succession Act 2006. The court held that the plaintiff had not demonstrated that inadequate provision had been made for her, and therefore, no provision ought to be made.

The court ordered that the deceased's estate be distributed according to the intestacy rules, with the defendant as the deceased's de facto spouse. The court dismissed the plaintiff's application for provision from her mother's estate.

Orders