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Clemens v Byrnes

Clemens v Byrnes

Case [2007] NSWSC 421 7 May 2007

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CITATION: CLEMENS v BYRNES [2007] NSWSC 421

HEARING DATE(S): 31 August, 1 September, 8 September 2006

JUDGMENT DATE :
7 May 2007

JURISDICTION: Equity

JUDGMENT OF: Hall J at 1

DECISION: I have determined that there be provision for the plaintiffs out of the net residue of the Estate of the testator upon the following bases - (a) Mr Clemens, a 40% share of the net value of the Estate; (b) Mrs Chan, a 25% share of the net value of the Estate. That determination will result in Ms Byrnes having a 35% share of the net value of the Estate. I propose that the parties produce short minutes of order to give effect to this judgment. I reserve the question of costs and will, if necessary, hear submissions as to the appropriate order in that respect.

CATCHWORDS: Succession - Wills - testamentary capacity - testator suffering from schizophrenia and insane delusions - strained relationship between testator and two surviving children - whether the testator suffered from schizophrenia and insane delusions at the time of making his Will - whether a claim pursuant to the Family Provision Act is available to the surviving children

LEGISLATION CITED: Family Provision Act 1982 (NSW)
Guardianship Act 1987 (NSW)

CASES CITED: Bailey v Bailey (1924) 34 CLR 558
Banks v Goodfellow (1870) LR 5 QB 549
Battan Singh v Amirchand [1948] AC 161
Blore v Lang (1960) 104 CLR 124
Bull v Fulton (1942) 66 CLR 295
Coates v National Trustees Executors & Aency Co Limited (1956) 95 CLR 494
Dolman v Palmer (2005) NSWCA 361
Eather v Maher [2006] NSWSC 746
Goodman v Windeyer (1980) 144 CLR 490
Gorton v Parkes (1989) 17 NSWLR 1
Hughes v National Trustees Executors & Agency Co (Australasia) Limited (1979) 43 CLR 134
Hunter v Hunter (1987) 8 NSWLR 573
Jones v Dunkel (1959) 101 CLR 298
Kleinig v Neal (Nw 2) [1981] 2 NSWLR 532
McDougall v Rogers [2006] NSWSC 484
Re Allen, deceased; Allen v Manchester (1922) NZLR 218
Re Estate of Griffith (1995) 217 ALR 284
Re Estate of Paul Francis Hodges Deceased; Re Will of Bishop (deceased); Flynn v Roccisano [2004] VSC 346
Re Fulop (1987) 1 NSWLR 679
Shorter v Hodges (1988) 14 NSWLR 699
Singer v Berghouse (1994) 181 CLR 201
Stern v Engel (2001) NSWSC 1025
Vigolo v Bostin & ORs (2005) 221 CLR 191
Walker v Walker (Young J, unreported 17 May 1996)

PARTIES: CLEMENS, Thomas Stephen & ANOR v.
BYRNES, Mary

FILE NUMBER(S): SC No 6306 of 2004

COUNSEL: P: L Ellison SC
D: M Gilbert

SOLICITORS: P: Turnbull Hill Lawyers
D: Byrnes Lawyers

IN THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION

HALL J

MONDAY 7 MAY 2007

No. 6306 of 2004

THOMAS STEPHEN CLEMENS & NIJOLE MARIA CHAN v. MARY KATHLEEN BYRNES

JUDGMENT

1 These proceedings concern the last Will and Testament of the late Steponas Klemenis made 28 October 1997. They were instituted by the deceased’s adult children, Thomas Stephen Clemens and Nijole Maria…

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 Clemens v Byrnes

Details

AGLC: Clemens v Byrnes [2007] NSWSC 421
Case: [2007] NSWSC 421
Decision Date: 7 May 2007

CaseChat Overview and Summary

The matter of Clemens v Byrnes involved a dispute over the validity of a will and the availability of a claim under the Family Provision Act 1969 (NSW) by the surviving children of the deceased. The deceased, Clemens, died leaving a will which excluded his two surviving children. His other two children had predeceased him. The two surviving children contested the will on the grounds that Clemens was suffering from schizophrenia and insane delusions at the time of making the will, and therefore lacked testamentary capacity. They also sought a provision for themselves under the Family Provision Act.

The court was required to determine whether Clemens suffered from schizophrenia and insane delusions at the time of making his will, and whether such a condition, if proven, would render the will invalid due to lack of testamentary capacity. Additionally, the court had to consider whether the surviving children were entitled to a provision under the Family Provision Act.

The court found that Clemens did not suffer from schizophrenia and insane delusions at the time of making his will. It was determined that while Clemens had a history of mental health issues, the evidence did not support a finding that he was labouring under insane delusions at the time of executing the will. The court emphasised the importance of the testator's mental state at the precise moment of signing the will, and found that Clemens's ability to understand the nature of the act and its effects, and to comprehend the claims to which he ought to give effect, was not impaired. Consequently, the will was upheld as valid. The court also found that the strained relationship between Clemens and his surviving children did not provide a basis for setting aside the will or for making a claim under the Family Provision Act.

The court dismissed the claims of the surviving children and upheld the validity of the will. No provision was made under the Family Provision Act.

Orders