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Whether Deed should be rescinded – whether will dated 10 October 2008 should be pronounced – if not, whether will dated 6 May 2007 should be pronounced – if not, whether will dated 3 December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 The Deed is rescinded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 163Testamentary Causes Jurisdiction
BAMPTON J.
Introduction
Background
The alleged wills giving the whole of the estate to the…
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CaseChat Overview and Summary
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
Evidence
Evidence Before The Court
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Decision
Reasons for decision
Ratio Decidendi
Legal Principle Established
Established by: BAMPTON J
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