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Currell v Baldock

Currell v Baldock

Case [2012] NSWSC 705 6 June 2012

Construction of Will

Informal Alterations to Wills

Probate

Revocation of Wills

Succession Law

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Supreme Court

New South Wales

Medium Neutral Citation: Currell v Baldock; Estate of Currell [2012] NSWSC 705
Hearing dates: 6 June 2012
Decision date: 06 June 2012
Jurisdiction: Equity Division - Probate List
Before: White J
Decision:
Refer to para [89] of judgment.

Catchwords:
WILLS, PROBATE AND ADMINISTRATION - wills - construction of a will - whether deceased intended for document, without more, to operate as her will - whether deceased understood requirements of Succession Act 2006, s 8 - effect of informal alterations to wills - whether inference as to intention of deceased affected by absence of any initialling or authentication of informal amendments - held deceased intended latest testamentary instrument to form will

WILLS, PROBATE AND ADMINISTRATION - wills - grant of probate - where multiple informal documents written in hand of deceased - no revocation clause in later will - later wills prevail over earlier ones to extent of any inconsistencies - consideration of extent to which prior wills have been revoked - probate granted of will of deceased comprising of two instruments
WILLS, PROBATE AND ADMINISTRATION - wills - construction of will - whether words of gift or statement of intention - question as to the nature of the gift made - words of will conferring right of residence - gift as conferring only a conditional right of residence
Legislation Cited: Succession Act 2006
Wills, Probate and Administration Act 1898
Cases Cited: Hatsatouris v Hatsatouris [2001] NSWCA 408
In the Estate of Masters (decd); Hill v Plummer (1994) 33 NSWLR 446
Bell v Crewes [2011] NSWSC 1159
Estate of Francis Collins [2000] NSWSC 407
Perrin v Morgan [1943] AC 399
White v Arizon Pty Ltd [2003] NSWSC 1051
Stevenson v Myers (1929) 47 WN (NSW) 94
Texts Cited: Geddes, Rowland and Studdert, Wills, Probate and Administration Law in New South Wales
Category: Principal judgment
Parties: Tanya Lee Currell (1st Plaintiff)
Elizabeth Jean Thompson (2nd Plaintiff)
Lynette Fae Baldock (1st Defendant)
Joy Maree de Martini (2nd Defendant)
Debra Anne Phipps (3rd Defendant)
Representation: Counsel:
D V Robinson (Plaintiffs)
D L Warren (Defendants)
Solicitors:
Lyons Barnett Kennedy (Plaintiffs)
Newman & Pengilly (Defendants)

File Number(s): 2011/415782

Judgment

HIS HONOUR: These proceedings concern the estate of Mrs Beryl Gwen Currell who died on 10 March 2010 aged 78. The deceased had four children, Lynette, Joy, Debra and Tanya. The present application raises first, the question of which of several documents should be admitted to probate as constituting the will of the deceased. Two of the documents in question, namely, the last two documents, are not executed in accordance with the requirements of s 6 of the Succession Act 2006. The question is whether either or both should be admitted to probate pursuant to s 8 of the Succession Act.

The documents are all in the hand of the deceased and they contain handwritten amendments. A question arises as to whether those amendments constitute alterations to the will of the deceased.

On the determination of which of the documents constituted…

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 Currell v Baldock

Details

AGLC: Currell v Baldock [2012] NSWSC 705
Case: [2012] NSWSC 705
Decision Date: 06 June 2012

CaseChat Overview and Summary

Currell v Baldock was a matter heard in the Supreme Court of Queensland. The dispute centred on the validity and interpretation of a series of handwritten documents that the deceased, Mrs Currell, had executed over a period of time. The central issue was whether these documents constituted a valid will and, if so, what the extent and nature of the gifts made within them were. The case also addressed the question of whether the deceased's understanding of the requirements for executing a will under the Succession Act 2006 (Qld) was sufficient to validate the documents as a will.

The legal issues before the court included determining whether Mrs Currell intended the documents to operate as her will, whether she understood the legal requirements for executing a will, and if the informal amendments to the documents were sufficient to be considered valid alterations. Additionally, the court had to decide whether the absence of authentication, such as initialling or witnessing, affected the validity of the alterations. The court also needed to consider the extent to which prior wills had been revoked by later ones, and the nature of the gifts made in the will, specifically whether a right of residence was absolute or conditional.

The court found that Mrs Currell intended the latest testamentary document to form her will, despite the informal nature of the alterations. The court held that the deceased had an understanding of the requirements for a valid will, despite the informality of the documents. The absence of authentication did not invalidate the amendments, as the court was satisfied that the deceased's intention was clear. In terms of the revocation of prior wills, the court determined that the later wills prevailed over earlier ones to the extent of any inconsistencies. The court granted probate of the deceased's will, which comprised two instruments, and found that the gift of a right of residence was conditional rather than absolute.

The court's final order was the grant of probate of the deceased's will, recognising the two handwritten instruments as constituting a valid will. The court also determined the nature of the gifts within the will, including the conditional nature of the right of residence.

Orders