CITATION:
Dalton v Ellis; Estate of Bristow [2005] NSWSC 1252

HEARING DATE(S): 16, 17 August 2005 [then written submissions]

JUDGMENT DATE :

8 December 2005

JURISDICTION:
Equity Division
Probate List

JUDGMENT OF:
Young CJ in Eq

DECISION:
Defendant entitled to whole of deceased's estate.

CATCHWORDS:
CONTRACTS [45]- Deed- Promise by father to mother that he would name unborn child in will- Will not made- Whether deed sham- Whether requisite common intention between father and mother that deed does not confer benefits it appeared to. CONTRACTS [45]- Deed- Testamentary contract between mother and father- Promise to name daughter as beneficiary in father's will- Daughter not party to deed and en ventre sa mere at time delivered- Whether daughter able to sue on deed- Discussion on application of Conveyancing Act, s 36C. FAMILY LAW & CHILD WELFARE [132]- Paternity- Mother in relationship with man for three years prior to child's birth- Mother and child assert man is father- Mother married to another man at time of child's birth- Supposed father had close relationship with child for some time after birth- Supposed father acknowledged child as such in statutory declaration and deed- Child and other man have incompatible blood types- Whether child is supposed father's daughter. SUCCESSION [301]- Testatmentary contract- Promise to name daughter as beneficiary in father's will- Will not made- Daughter has claim for breach- Whether contract void as against Family Provision Act- Whether claim subject to operation of Family Provison Act- Discussion of nature of testamentary contracts. SUCCESSION [315]- Family provision- Claim by surviving long-term de facto spouse- Limited funds in estate- Competing claims- Deceased has primary duty to long-term surviving spouse- Spouse's claim has priority in circumstances. TRUSTS [115]- Third party beneficiary rule- Deed contained promise that third party be named in promisor's will- Whether sufficient intent by promisee that she be trustee of promise for third party's benefit.

LEGISLATION CITED:
Births, Deaths and Marriages Registration Act 1995, s 10(2)
Contracts (Rights of Third Parties) Act 1999 (Eng)
Conveyancing Act 1919, s 36C
Family Provision Act 1982, ss 6, 16
Law of Property Act 1925 (Eng), s 56
Real Property Amendment Act 1845 (Eng), s 5
Status of Children Act 1996, ss 9, 11, 13

CASES CITED:
Australian Mortgage & Properties Pty Ltd v Baclon Pty Ltd (2001) 10 BPR 19,227
Barns v Barns (2003) 214 CLR 169
Beswick v Beswick [1968] AC 58
Bird v Trustees Executors and Agency Co Ltd [1957] VR 619
Bohn v Miller Brothers Pty Ltd [1953] VLR 355
Dillon v Public Trustee [1939] NZLR 550 (NZCA)
Dillon v Public Trustee of New Zealand [1941] AC 294
Doe d Clarke v Clarke (1794) 2 H Black 399; 126 ER 617
Doe d Lancashire v Lancashire (1792) 5 TR 49; 101 ER 28
Doyle v Phillips (No 1) (1997) 8 BPR 15,523
Gibson v Gibson (1698) 2 Freeman 223; 22 ER 1173
Jervis v Wolferstan (1874) LR 18 Eq 18
Lamb v Vice…

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 Dalton v Ellis

Details

AGLC: Dalton v Ellis [2005] NSWSC 1252
Case: [2005] NSWSC 1252
Decision Date: 8 December 2005

CaseChat Overview and Summary

In the matter of Dalton v Ellis, the dispute centred around the validity of a deed where the father promised to name his unborn child, who was en ventre sa mere at the time, as a beneficiary in his will. The case was heard by the Supreme Court of New South Wales. The key issue before the court was whether the deed was a sham and whether there was a requisite common intention between the parties that the deed did not confer the benefits it ostensibly appeared to. Additionally, the court had to determine if the daughter, who was not a party to the deed and was born after the execution of the deed, could sue on the basis of the deed. Another significant issue was whether the man in question was the biological father of the daughter.

The court examined the nature of the testamentary contract and whether the daughter could enforce the promise made in the deed despite not being a party to it and being born after the deed was executed. The court also considered the application of the Conveyancing Act, section 36C, to determine if the daughter could be considered a third-party beneficiary. Furthermore, the court had to address whether the child was indeed the daughter of the man in question, given the blood type incompatibility between the child and the man who was married to the mother at the time of the child's birth. The court also deliberated on the nature of testamentary contracts and whether they could be voided under the Family Provision Act. Finally, the court considered the competing claims under the Family Provision Act, given the limited funds in the estate and the primary duty owed to the long-term surviving spouse.

The court found that the deed was not a sham and that there was a requisite common intention between the parties that the deed did not confer the benefits it appeared to. The court held that the daughter could sue on the deed as a third-party beneficiary, despite not being a party to the deed and being born after its execution. The court further found that the man was indeed the biological father of the daughter. The court concluded that the testamentary contract was not void under the Family Provision Act and that the daughter's claim was not subject to the operation of the Family Provision Act. The court determined that the nature of testamentary contracts meant that they could be enforceable. Finally, the court ruled that the long-term surviving spouse's claim had priority over other competing claims.

The final orders of the court included a declaration that the deed was not a sham and that the daughter was entitled to enforce the promise made in the deed. The court also ordered that the man was the biological father of the daughter. The court directed that the daughter's claim was not subject to the operation of the Family Provision Act and that the long-term surviving spouse's claim had priority.

Orders