Cuthill v Vonta - [2016] SASC 163

SUPREME COURT OF SOUTH AUSTRALIA
(Testamentary Causes Jurisdiction)
CUTHILL & ANOR v VONTA
[2016] SASC 163
Judgment of The Honourable Justice Bampton
28 October 2016
SUCCESSION - MAKING OF A WILL - TESTAMENTARY INSTRUMENTS - WHERE SEVERAL INSTRUMENTS - GRANT OF SINGLE PROBATE - PARTICULAR CASES
The plaintiffs are the executors named in an alleged will of the deceased dated 24 February 2000 – the defendant is the niece of the deceased – in or about early March 2011, the defendant advised the plaintiffs that the deceased had made a later valid testamentary disposition by a will dated 6 May 2007 – the plaintiffs claim that on the basis of representations made by the defendant as to the 2007 will, they entered into a deed whereby they agreed to take no action to prevent the defendant from making an application to pronounce that 2007 will – subsequently, the plaintiffs wrote to the defendant stating that they believed the 2007 will had not been validly witnessed – the defendant produced two further alleged wills dated 3 December 2006 and 10 October 2008 – the originals of the alleged 2006, 2007 and 2008 wills have not been produced – the plaintiffs seek rescission of the May 2012 deed and a grant of probate in solemn form of the will dated 24 February 2000.
Whether Deed should be rescinded – whether will dated 10 October 2008 should be pronounced – if not, whether will dated 6 May 2007 should be pronounced – if not, whether will dated 3 December 2006 should be pronounced – if not, whether will dated 24 February 2000 should be pronounced.
HELD: The Court is not satisfied that the alleged wills dated 10 October 2008, 6 May 2007, and 3 December 2006 were executed in accordance with s 8 of the Wills Act 1936 (SA) – the will dated 24 February 2000 was executed in accordance with s 8 of the Wills Act 1936 (SA).
1. The Deed is rescinded
2. Pronounce against the alleged will dated 10 October 2008.
3. Pronounce against the alleged will dated 6 May 2007.
4. Pronounce against the alleged will dated 3 December 2006.
5. Pronounce for the will dated 24 February 2000.
6. There be a grant of probate in solemn form to Daniel Cuthill and Barry Machin of the last will and testament of Franciska Pregelj, also known as Frances Pregelj late of Bupa Residential Aged Care, 29 Austral Terrace, Morphettville in the State of SA, dated 24 February 2000.
Wills Act 1936 (SA) s 8, s 20; Evidence Act 1929 (SA) s 34C; Supreme Court Civil Rules 2006 (SA) r 205(8), referred to.
Cuthill v Vonta [2015] SASCFC 120; Thomas v Nash (2010) 107 SASR 309; Carney v Hall (2011) 111 SASR 424; Burnside v Mulgrew [2007] NSWSC 550, considered.

CUTHILL & ANOR v VONTA
[2016] SASC 163
Testamentary Causes Jurisdiction
BAMPTON J.
Introduction
Background
The alleged wills giving the whole of the estate to the…

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 Cuthill v Vonta

Details

AGLC: Cuthill v Vonta [2016] SASC 163
Case: [2016] SASC 163
Decision Date: 28 October 2016

CaseChat Overview and Summary

The plaintiffs in this matter, Daniel James Cuthill and Barry David Machin, as executors named in an alleged will dated 24 February 2000, brought proceedings against Vonta, the niece of the deceased, Franciska Pregelj. The central dispute involved the validity and execution of multiple alleged wills and a deed whereby the plaintiffs agreed not to contest the propounding of one of the alleged wills. The plaintiffs sought rescission of the deed and a grant of probate in solemn form of the will dated 24 February 2000. The defendant, on the other hand, sought to have one of the later alleged wills, dated 6 May 2007, pronounced.

The court was tasked with determining several legal issues, primarily whether the deed should be rescinded and which, if any, of the alleged wills should be pronounced. This included assessing the validity of the wills dated 10 October 2008, 6 May 2007, and 3 December 2006, and ultimately deciding whether the will dated 24 February 2000 should be pronounced. The court considered the requirements of section 8 of the Wills Act 1936 (SA) for the execution of wills and whether the plaintiffs had sufficient evidence to support their claims.

The court concluded that it was not satisfied on the balance of probabilities that the wills dated 10 October 2008, 6 May 2007, and 3 December 2006 were executed in accordance with section 8 of the Wills Act 1936 (SA). However, the court found that the will dated 24 February 2000 was executed properly. Consequently, the court granted the plaintiffs' requests, rescinding the deed and pronouncing against the alleged wills dated 10 October 2008, 6 May 2007, and 3 December 2006. The court also pronounced for the will dated 24 February 2000 and ordered a grant of probate in solemn form to the plaintiffs.

Orders

Orders of the court

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Background

Background to the litigation

Ms Vonta has not produced the original of the 2006, 2007 or the 2008 Wills. It is her case that each document was removed from Mrs Pregelj’s house after her death by persons unknown.Background Mrs Pregelj, known as Franciska, Francezca, Frances or Fanika Pregelj, was born in Yugoslavia on 3 June 1927. She immigrated to Australia prior to her marriage to Andrej Pregelj on 27 December 1958.[6] Mr Pregelj had immigrated to Australia at an earlier time from Yugoslavia with his friend Ludwig Brgoc. Upon arriving in Adelaide, Mrs Pregelj was met by Mr Brgoc’s future wife, Maria, who introduced her to Andrej Pregelj. Following their marriage, they lived in a house built by Mr Pregelj at 53 Spring Street, North Plympton. Mrs Pregelj lived at that address until approximately 2008 when she went in to a nursing home.[6] Exhibit P2 (Book 6, p. 1072). On 18 June 1965, Mrs Pregelj became an Australian citizen.[7] According to the records of the Probate Registry, Mr Pregelj died on 12 December 1974 leaving his estate, which included the Spring Street property, to Mrs Pregelj. [7] Exhibit P2 (Book 6, p. 1074). Mrs Pregelj married Valance Stacpoole on 10 January 1981 according to the rites of Jehovah’s Witnesses. There were no children of this marriage. To give context to the asserted creation of the 2006, 2007 and 2008 Wills, it is necessary to have regard to the Royal Adelaide Hospital, Repatriation Hospital and Flinders Medical Centre records pertaining to Mrs Pregelj,[8] together with the Guardianship Board records.[9] The salient information contained in those records is set out in the Appendix to the Plaintiffs’ Outline of Submissions, which I paraphrase as follows.[8] Exhibit P1.[9] Exhibit P2. Mrs Pregelj was admitted to the Royal Adelaide Hospital on 27 November 2006 with chronic right leg venous stasis. During this admission at 5.00am on 3 December 2006, Mrs Pregelj was given oxycodone. It is recorded that Mrs Pregelj was assisted with a shower in the morning and that she was walking very short distances. It is also recorded that at 3.10pm she cried for pain relief. Ms Vonta asserts that Mrs Pregelj made a will on 3 December 2006. There is no record of Ms Vonta attending Mrs Pregelj at the Royal Adelaide Hospital on 3 December 2006. There is also no record of Mrs Pregelj leaving the hospital that day. It is recorded that, on 4 December 2006, Mrs Pregelj was washed in her bed. On 5 December 2006, a family meeting was held at the Royal Adelaide Hospital which Ms Vonta attended. The plaintiffs point out that there is no record of any discussion concerning a will or the 2006 Will at that meeting. Mrs Pregelj was discharged to St Margaret’s on 19 December 2006 and discharged home on 2 January 2007. Ms Vonta asserts that Mrs Pregelj made a will on 6 May 2007. During 2007, Mrs Pregelj was admitted to hospital on three occasions. She was admitted to the Flinders Medical Centre between 26 March 2007 and 10 April 2007 and again between 20 and 24 May 2007. She was admitted to the Repatriation Hospital between 13 June 2007 and 2 July 2007. During this admission, Mrs Pregelj underwent a mini mental state examination (“MMSE”) and scored 14/30.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

BAMPTON J

The plaintiffs are entitled to an order rescinding the Deed. Conclusion I am not satisfied on the balance of probabilities that any of the three documents sought to be propounded by Ms Vonta were properly executed in accordance with s 8 of the Wills Act and accordingly I pronounce against each document. I am satisfied the 2000 Will has been proven by the evidence of Mr Bromwich, which I accept without reservation.[89] [89] Exhibit P23. I make the following orders:1I rescind the Deed.2I pronounce against the alleged will dated 10 October 2008.3I pronounce against the alleged will dated 6 May 2007.4I pronounce against the alleged will dated 3 December 2006.5I pronounce for the will dated 24 February 2000.6I order that there be a grant of probate in solemn form to Daniel James Cuthill and Barry David Machin of the last will and testament of Franciska Pregelj, also known as Frances Pregelj late of Bupa Residential Aged Care, 29 Austral Terrace, Morphettville in the State of SA, dated 24 February 2000. I will hear the parties regarding consequential orders and costs.

Ratio Decidendi

Legal Principle Established

Established by: BAMPTON J

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