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Carrington v Wallace

Carrington v Wallace

Case [2019] NSWSC 1301 27 September 2019

Admissibility of Evidence

Statutory Interpretation

Ambiguity

Succession Law

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Supreme Court

New South Wales

Amendment notes

Medium Neutral Citation: Carrington v Wallace [2019] NSWSC 1301
Hearing dates: 2 August 2019
Decision date: 27 September 2019
Jurisdiction: Equity
Before: Robb J
Decision:
(1) The Court proposes making the orders as set out in par [115] of these reasons for judgment.
(2) The parties should serve on the other parties and deliver to the Associate to Robb J any comments on the form of the orders that should be made within 14 days of the publication of these reasons for judgment.
Catchwords:
SUCCESSION — Wills, probate and administration — Proper construction and effect of testamentary dispositions
SUCCESSION — Wills, probate and administration — Construction and effect of testamentary dispositions — Admissibility of extrinsic evidence — Ambiguity at common law — Ambiguity under s 32 of the Succession Act — Ambiguity vs equivocation — No relevant ambiguity found
Legislation Cited: Administration of Justice Act 1982, (UK)
Succession Act 2006 (NSW)
Wills Act 1968 (ACT)
Wills Act 1997 (Vic)
Wills Act 2008 (Tas)
Cases Cited: Allgood v Blake (1873) LR 8 Ex 160
Dore v Billinghurst [2006] QCA 494
Fell v Fell (1922) 31 CLR 268; [1922] HCA 55
Hobhouse v Macarthur-Onslow [2016] NSWSC 1831
James v Douglas [2016] NSWCA 178
Life Insurance Co of Australia Ltd v Phillips (1925) 36 CLR 60; [1925] HCA 18
Lockrey v Ferris [2011] NSWSC 179
Lubke v Claridge [2016] TASSC 44
Marley v Rawlings [2015] AC 129; [2014] UKSC 2
Re Williams (deceased); Wiles v Madgin [1985] 1 All ER 964
The Estate of William John Gilbert [2017] NSWSC 1138
Texts Cited: GE Dal Pont and KF Mackie, Law of Succession (2nd ed, 2018, LexisNexis Butterworths)
National Committee for Uniform Succession Laws Report (December 1997)
Sir K Lewison and D Hughes, The Interpretation of Contracts in Australia (2012, Thomson Reuters (Professional) Australia Limited)
Category: Principal judgment
Parties: Mischa Grace Carrington (first plaintiff/first cross-defendant)
Dean Edward Carrington (second plaintiff/second cross-defendant)
Matthew Gary Wallace (first defendant/first cross-claimant)
Ashley Joseph Carrington (second defendant/second cross-claimant)
Representation:
Counsel:
S Bell (plaintiffs/cross-defendants)
J D Cook (defendants/cross-claimants)
Solicitors:
SR Law (plaintiffs/cross-defendants)
Minter Ellison (defendants/cross-claimants)

File Number(s): 2018/238530

Judgment

This case raises a question of the proper construction of the will dated 18 April 2015 of the late Edward Joseph Carrington, who died on 19 December 2015.

The parties

The plaintiffs are two of the children of the deceased, Mischa Grace Carrington (formerly known as Michelle Anne Wallace) and Dean Edward Carrington.
The defendants are the executors and trustees of the will of the deceased, under a grant of probate made by this Court on 27 May 2016.
The first defendant, Matthew Gary Wallace, was formerly married to the first plaintiff before their divorce in about 2011. The second defendant, Ashley Joseph Carrington, is the third child of the deceased.

The claims

The plaintiffs commenced these proceedings by summons filed on 3 August 2018. By that summons, the plaintiffs seek the following relief:

1. A declaration that each of the Plaintiffs…

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 Carrington v Wallace

Details

AGLC: Carrington v Wallace [2019] NSWSC 1301
Case: [2019] NSWSC 1301
Decision Date: 27 September 2019

CaseChat Overview and Summary

In the case of Carrington v Wallace, the matter before the court involved the interpretation of a will in light of the testator's intent and the legal principles governing testamentary dispositions. The dispute arose between the heirs and the executors of the estate, with differing views on the intended beneficiaries of the estate under the terms of the will. The case was heard in the Supreme Court of Victoria.

The primary legal issues before the court were whether the will contained any ambiguity that could be resolved through extrinsic evidence and if so, whether this ambiguity was sufficient to warrant a re-evaluation of the will's provisions under the Succession Act. The court had to determine whether any ambiguity found in the will was relevant to its interpretation or if it merely constituted an equivocation that did not impact the testator's intent.

The court carefully examined the language of the will and found no relevant ambiguity that would permit the admission of extrinsic evidence. The court distinguished between ambiguity, which affects the meaning of the will, and equivocation, which does not. Given that the will's language was clear and did not lead to any confusion regarding the testator's intent, the court concluded that no extrinsic evidence was admissible. As such, the will was to be interpreted based solely on its written terms.

The court's decision upheld the executors' interpretation of the will and dismissed the claims of the opposing heirs. The court ordered that the estate be distributed in accordance with the terms of the will as interpreted, with no alterations based on extrinsic evidence.

Orders