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Campton v Hedges

Campton v Hedges

Case [2016] NSWSC 201 14 March 2016

Probate

Informal Testamentary Document

Statutory Construction

Succession Law

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Supreme Court

New South Wales

Medium Neutral Citation: Campton v Hedges [2016] NSWSC 201
Hearing dates: 3 March 2016
Date of orders: 14 March 2016
Decision date: 14 March 2016
Before: Hallen J
Decision:
The Court:
(a) Declares that it is satisfied that the altered Will, being Ex. B in these proceedings, purports to state the testamentary intentions of the deceased, and that it has not been executed in accordance with Part 2.1 of the Succession Act 2006.
(b) Declares that it is satisfied that the altered Will forms the Will of the deceased and that the deceased intended it to form his Will.
(c)   Declares that it is satisfied that the altered Will forms a full revocation of the typewritten Will, a copy of which is Ex. A in the proceedings, and that the deceased intended it to be a full revocation of the typewritten Will.
(d) Orders, subject to compliance with the rules of Court, that Probate in solemn form of the altered Will, be granted to the Plaintiffs.
(e) Orders that the matter be remitted to the Deputy Registrar in Probate to complete the grant.
(f) Orders that the administration bond be dispensed with.
(g)   Orders that the Plaintiffs’ costs, calculated on the indemnity basis, of the proceedings be paid out of the estate of the deceased.
(h)   Makes no order as to the Defendant’s costs to the intent that she will bear her own costs of the proceedings.
(i) Orders that the exhibits be retained.

Catchwords: SUCCESSION - informal testamentary document - no dispute that altered Will not executed in accordance with s 6 Succession Act 2006 - No dispute that the altered Will purports to state the testamentary intentions of a deceased - Deceased familiar with the formal requirements for the making of a valid will - Whether Court satisfied that the deceased intended the altered Will to form a Will - No dispute that if Court not satisfied there should be grant of Probate of typewritten Will - Sufficient evidence for the Court to dispense with the usual requirements for the execution of a valid will under s 8(2) of the Succession Act - Probate granted of altered Will
Legislation Cited: Evidence Act 1995 (NSW)
Interpretation Act 1987 (NSW)
Succession Act 2006 (NSW)
Supreme Court Rules 1970 (NSW)
Cases Cited: Belcastro v Belcastro [2004] WASC 111
Costa v the Public Trustee of NSW [2008] NSWCA 223
Fast v Rockman [2013] VSC 18
In the Estate of Kiepas (Deceased); Twemlow v Kiepas [2004] NSWSC 452
In the Estate of Knibbs, Deceased; Flay v Trueman [1962] 2 All ER 829; [1962] 1 WLR 852
In the Estate of Margaret, Deceased [2012] NSWSC 1490
In the Estate of Masters (Deceased); Hill v Plummer
(1994) 33 NSWLR 446
In the Estate of O'Dell [2010] NSWSC 678
In the Estate of Stewart (NSWSC, 12 April 1996, unreported)
Lindsay v McGrath [2015] QCA 206
Marley v Rawlings [2012] EWCA Civ 61; [2013] 2 WLR 205
Masters v Cameron [1954] HCA…

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 Campton v Hedges

Details

AGLC: Campton v Hedges [2016] NSWSC 201
Case: [2016] NSWSC 201
Decision Date: 14 March 2016

CaseChat Overview and Summary

In the matter of Campton v Hedges, the court was tasked with determining whether an altered Will, which was not executed in accordance with the requirements of section 6 of the Succession Act 2006, could be considered as the testamentary document of the deceased. The dispute arose between the named beneficiaries under the altered Will and other potential heirs who claimed that the altered document should not be recognised as a valid Will. The court was called upon to decide whether the deceased intended the altered Will to form his or her final testamentary dispositions, despite the lack of compliance with the formal requirements for the execution of a valid will.

The central legal issue before the court was whether there was sufficient evidence to conclude that the deceased intended the altered Will to represent his or her testamentary intentions, despite the absence of formal execution requirements. The court had to consider the circumstances surrounding the creation of the altered Will, including the deceased's familiarity with the formal requirements for making a valid will, and whether there were any other factors that could demonstrate the deceased's intention to replace the original Will with the altered version. The court was also required to determine whether the evidence presented was sufficient to satisfy the criteria set out in section 8(2) of the Succession Act, which allows for the dispensing of the usual requirements for the execution of a valid will.

In delivering its judgment, the court found that there was sufficient evidence to satisfy it that the deceased intended the altered Will to form his or her final testamentary dispositions. The court considered the circumstances surrounding the creation of the altered Will, including the deceased's familiarity with the formal requirements for making a valid will, and the absence of any other testamentary documents or indications that the deceased intended to revoke or replace the original Will. The court held that the evidence was sufficient to dispense with the usual requirements for the execution of a valid will under section 8(2) of the Succession Act. Consequently, the court granted Probate of the altered Will, recognising it as the testamentary document of the deceased.

Orders