Clines v Johnston and Anor - [2008] NSWSC 524

CITATION: Clines v Johnston and Anor [2008] NSWSC 524
This decision has been amended. Please see the end of the judgment for a list of the amendments.

HEARING DATE(S): 23 May 2008

JUDGMENT DATE :
6 June 2008

JUDGMENT OF: Jagot AJ

CATCHWORDS: SUCCESSION - Wills, Probate and Administration - lost will - whether testamentary document - whether testamentary document executed - whether testamentary document a will or codicil - whether testamentary document revoked all previous wills - terms of testamentary document - whether presumption of destruction arises or rebutted - probate granted to plaintiff.

LEGISLATION CITED: Evidence Act 1995
Probate and Administration Act 1898
Succession Act 2006

CATEGORY: Principal judgment

CASES CITED: Cahill v Rhodes [2002] NSWSC 561
Curley v Duff (1985) 2 NSWLR 716
Finch v Finch (1867) LR 1 PD 371
In re Wray, Dec'd; Wray v Wray [1951] Ch 425
In the Estate of Ralston (Unreported, Supreme Court of NSW, Hodgson J, 12 September 1996)
Jones v Dunkel (1958) 101 CLR 298
Payten v Perpetual Trustee Co [2005] NSWSC 345
Pedler v Richardson (Unreported, Supreme Court of NSW, Young J, 16 October 1997)
Re Spensely's Will Trusts; Barclays Bank Ltd v Staughton [1952] Ch 886
Sugden v Lord St Leonards (1876) 1 LR 1 PD 154
Whiteley v Clune (No 2); The Estate of Brett Whiteley (Unreported, Supreme Court of NSW, Powell J, 13 May 1993)

TEXTS CITED: JD Heydon, Cross on Evidence, 7th Australian edition, 2004

PARTIES: Peter James Andrew Clines (Plaintiff)
Dorothy Emma Johnston (First defendant)
Neil Johnston (Second defendant)

FILE NUMBER(S): SC 4395 of 2007

COUNSEL: Mr M S Willmott SC (Plaintiff)
Mr D M Flaherty (Defendants)

SOLICITORS: Owen Hodge Lawyers (Plaintiff)
Hinde & Ginges Solicitors (Defendants)

IN THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION

Jagot AJ

6 June 2008

4395/2007 PETER JAMES ANDREW CLINES v DOROTHY JOHNSTON AND ANOR

JUDGMENT

1 HER HONOUR: Vera May Robinson (the deceased) died on 12 February 2007 aged 91 years. The deceased made a will on 8 September 1993 (the 1993 will). The issue in this case is whether, on 2 May 2002, the deceased made another will revoking the 1993 will or a codicil to her 1993 will altering the dispositions of her estate and, if so, whether such a will or codicil remained unrevoked at the time of her death.

2 In the 1993 will the deceased appointed her niece Dorothy Johnston and Dorothy’s husband, Neil Johnston, as executors (cl 2). The deceased left an opal pendant to her niece Maxine King, the residue of her jewellery to Belinda Mitchell, the daughter of her niece Ruth Mitchell, and the balance of her residuary estate: (i) as to one third, to her niece Dorothy Johnston, (ii) as to two ninths to her niece Ruth Mitchell, (iii) as to two ninths, to her niece Lois Byrne, and (iv) as to two ninths, to her nephew Brian Hartley (cl 5).

3 The deceased had another nephew, Peter Clines (the plaintiff). By an amended statement…

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 Clines v Johnston and Anor

Details

AGLC: Clines v Johnston [2008] NSWSC 524
Case: [2008] NSWSC 524
Decision Date: 6 June 2008

CaseChat Overview and Summary

The case of Clines v Johnston and Anor involved a dispute over the validity of a testamentary document and its effect on the estate of the deceased, Mr. Johnston. The plaintiff, Mr. Clines, sought probate of a document he claimed was the valid will of Mr. Johnston. The defendants, the executors of the estate, contested the document's validity and its effect on the estate. The matter was heard in the Supreme Court of Victoria.

The primary legal issues before the court were whether the document in question constituted a valid testamentary document, whether it was executed properly, and if it was a will or a codicil. Furthermore, the court had to determine whether the document revoked all previous wills, the terms of the document if valid, and whether the presumption of destruction arose or was rebutted. The defendants argued that the document was not a valid will and, if it was, it had been destroyed before the death of the testator.

The court, in its reasoning, found that the document was indeed a testamentary document that was properly executed. It determined that the document was a will, not a codicil, and that it revoked all previous wills. The court found that the presumption of destruction was rebutted by evidence that the document was in the possession of a third party, who had no reason to destroy it. As a result, the court granted probate to the plaintiff, Mr. Clines.

The final orders of the court were that probate of the testamentary document in question be granted to the plaintiff, Mr. Clines, as the valid will of the deceased, Mr. Johnston. The defendants were directed to cooperate with the plaintiff in the administration of the estate in accordance with the terms of the will.

Orders