Burge v Burge - [2015] NSWCA 289

Court of Appeal

Supreme Court

New South Wales

Medium Neutral Citation: Burge v Burge [2015] NSWCA 289
Hearing dates: 10 September 2015
Decision date: 24 September 2015
Before: Macfarlan JA at [1];
Meagher JA [2];
Leeming JA at [3]
Decision:
1. Appeal dismissed.
2. The parties supply any agreed order as to costs within 14 days, or, alternatively, the parties each supply orders they propose together with submissions not exceeding 5 pages in support within 14 days.

Catchwords:
APPEALS – leave to appeal – grant of probate – estate valued in excess of $100,000 – most of estate comprised overseas bank accounts – value of assets located within New South Wales less than $100,000 – whether leave to appeal required – by taking out probate, executrix accepted trusts in the will, including as to foreign property – leave not required
WILLS – informal testamentary document – professionally drafted will amended, signed and dated but not witnessed – primary judge not satisfied that deceased intended document to form his will – document located separately from other testamentary documents, including a validly executed will – deceased in habit of signing and dating documents which were never sent – deceased aware of requirement to witness will – appeal dismissed
Legislation Cited: Succession Act 2006 (NSW), ss 8, 48
Supreme Court Act 1970 (NSW), s 101
Wills, Probate and Administration Act 1898 (NSW), s 18A
Cases Cited: Burge v Burge [2014] NSWSC 1772
Burge v Burge (No 2) [2015] NSWSC 141
Costa v Public Trustee of NSW [2008] NSWCA 223
Hatsatouris v Hatsatouris [2001] NSWCA 408
In the Estate of Masters (decd) (1994) 33 NSWLR 446
Murakami v Wiryadi [2010] NSWCA 7; 218 ALR 377 Weinstock v Sarnat [2005] NSWSC 744
Category: Principal judgment
Parties: Conrad Michael Burge (Appellant)
Anne Belle Burge (Respondent)
Representation:
Counsel:
M S Willmott SC, S J Chapple (Appellant)
V F Kerr (Respondent)
Solicitors:
Lane & O’Rourke (Appellant)
Lane & Lane (Respondent)

File Number(s): 2014/376380
Publication restriction: Nil
Decision under appeal

Court or tribunal:

Supreme Court of New South Wales

Jurisdiction:

Equity

Citation:

[2014] NSWSC 1772

Date of Decision:

11 December 2014

Before:

Darke J

File Number(s):

2013/137871

Judgment

MACFARLAN JA: I agree with Leeming JA’s judgment. In particular, I agree that where a deceased has executed a document of apparently testamentary character, albeit without witnesses, s 8(2)(a) of the Succession Act 2006 (NSW) will ordinarily apply. Nonetheless, the evidence in the present case requires a different conclusion. For example, as Leeming JA identifies, the evidence demonstrated that the deceased was a meticulous person who would on occasions initial or sign and date documents even though they were apparently not intended to have legal effect. Further, the location in which the subject document was found, being separate from the deceased’s other testamentary documents, and less accessible, weighs against the application of s 8.
MEAGHER JA: I agree with Leeming JA.
LEEMING JA: The deceased left a valid will leaving his estate to his wife, and a…

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 Burge v Burge

Details

AGLC: Burge v Burge [2015] NSWCA 289
Case: [2015] NSWCA 289
Decision Date: 24 September 2015

CaseChat Overview and Summary

The appeal concerned a dispute over the grant of probate for an estate valued in excess of $100,000, where the majority of assets were located in overseas bank accounts, with assets within New South Wales valued at less than $100,000. The executrix had taken out probate, thereby accepting the trusts in the will, including those pertaining to foreign property. The primary legal issue was whether leave to appeal was required in these circumstances. A secondary issue involved an informally drafted testamentary document, which had been amended, signed, and dated by the deceased but not witnessed. The court was required to determine whether the deceased intended this document to form his will, given its separate location from other testamentary documents, including a validly executed will, and the deceased's awareness of the witnessing requirements.

The court held that leave to appeal was not required in this instance. Regarding the informal testamentary document, the primary judge had not been satisfied that the deceased intended it to constitute his will. This conclusion was supported by the fact that the document was found separately from the deceased's other testamentary documents, including a validly executed will. Furthermore, evidence indicated that the deceased had a habit of signing and dating documents that were never sent, and he was aware of the legal requirement for a will to be witnessed.

Consequently, the appeal was dismissed. The parties were directed to supply any agreed order as to costs within 14 days, or, failing agreement, to each supply proposed orders with supporting submissions not exceeding five pages within the same timeframe.

Orders

Orders of the court

1. Appeal dismissed.

2. The parties supply any agreed order as to costs within 14 days, or, alternatively, the parties each supply orders they propose together with submissions not exceeding 5 pages in support within 14 days.

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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Medium Neutral Citation:	Burge v Burge [2015] NSWCA 289
Hearing dates:	10 September 2015
Decision date:	24 September 2015
Before:	Macfarlan JA at [1]; Meagher JA [2]; Leeming JA at [3]
Decision:	1. Appeal dismissed. 2. The parties supply any agreed order as to costs within 14 days, or, alternatively, the parties each supply orders they propose together with submissions not exceeding 5 pages in support within 14 days.
Catchwords:	APPEALS – leave to appeal – grant of probate – estate valued in excess of $100,000 – most of estate comprised overseas bank accounts – value of assets located within New South Wales less than $100,000 – whether leave to appeal required – by taking out probate, executrix accepted trusts in the will, including as to foreign property – leave not required WILLS – informal testamentary document – professionally drafted will amended, signed and dated but not witnessed – primary judge not satisfied that deceased intended document to form his will – document located separately from other testamentary documents, including a validly executed will – deceased in habit of signing and dating documents which were never sent – deceased aware of requirement to witness will – appeal dismissed
Legislation Cited:	Succession Act 2006 (NSW), ss 8, 48 Supreme Court Act 1970 (NSW), s 101 Wills, Probate and Administration Act 1898 (NSW), s 18A
Cases Cited:	Burge v Burge [2014] NSWSC 1772 Burge v Burge (No 2) [2015] NSWSC 141 Costa v Public Trustee of NSW [2008] NSWCA 223 Hatsatouris v Hatsatouris [2001] NSWCA 408 In the Estate of Masters (decd) (1994) 33 NSWLR 446 Murakami v Wiryadi [2010] NSWCA 7; 218 ALR 377 Weinstock v Sarnat [2005] NSWSC 744
Category:	Principal judgment
Parties:	Conrad Michael Burge (Appellant) Anne Belle Burge (Respondent)
Representation:	Counsel: M S Willmott SC, S J Chapple (Appellant) V F Kerr (Respondent) Solicitors: Lane & O’Rourke (Appellant) Lane & Lane (Respondent)
File Number(s):	2014/376380
Publication restriction:	Nil
Decision under appeal	Court or tribunal: Supreme Court of New South Wales Jurisdiction: Equity Citation: [2014] NSWSC 1772 Date of Decision: 11 December 2014 Before: Darke J File Number(s): 2013/137871