Gleeson JA at [1] Leeming JA at [318] White JA at [326]
Decision:
CA 2015/319432 (1) Appeal dismissed. (2) Appellant to pay the costs of the first and second respondents.
CA 2017/156218 (1) Extend time for the filing of the document styled “Notice of further appeal” on 1 May 2017. (2) Appeal dismissed. (3) Appellant to pay the costs of the first and second respondents.
Catchwords:
SUCCESSION – wills, probate and administration – whether evidence raised doubt as to testamentary capacity – whether proponents of last will satisfied the court that the deceased was of sound mind, memory and understanding at time of execution of will.
SUCCESSION – wills, probate and administration – whether presumption of knowledge and approval of contents of will displaced by suspicious circumstances – where respondent son involved in will-making process – whether deceased understood the legal effect of specific gifts of jointly owned property.
SUCCESSION – wills, probate and administration – claim for rectification of will – whether will gave effect to the deceased’s intention – where instructions for will given by deceased to his solicitor and also via his son - challenge to credit based findings of primary judge accepting evidence of instructions given by the deceased to his solicitor and his son.
SUCCESSION – wills, probate and administration – whether ademption of gift of specific property to appellant is affected by Protected Estates Act, s 48 or NSW Trustee and Guardian Act, s 83 – where gift of specific property given by will to appellant – where specific property held by deceased in joint tenancy with his wife – where joint tenancy severed by deceased’s financial managers and deceased’s interest in specific property later transferred to wife pursuant to orders of Family Court of Australia – whether statutory provisions operate to “claw back” value of interest given to appellant under the will but adeemed because deceased did not hold such property at date of death.
SUCCESSION – family provision and maintenance – whether order for further provision from estate should be made in favour of appellant – where appellant failed to adduce evidence that adequately disclosed his financial position.
[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.
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Details
AGLC
DJ Singh v DH Singh [2018] NSWCA 30
Case
[2018] NSWCA 30
Decision Date
CaseChat Overview and Summary
The appeal concerned a dispute over the validity and interpretation of a deceased’s will. The primary issues revolved around testamentary capacity, knowledge and approval of the will's contents, and the rectification of specific gifts. The court also considered whether certain statutory provisions affected the ademption of a gift of jointly owned property and whether further provision should be made from the estate for the appellant.
The court was required to determine whether the evidence raised sufficient doubt regarding the deceased's testamentary capacity and whether the proponents of the last will had satisfied the court that the deceased possessed sound mind, memory, and understanding at the time of its execution. Further, the court had to consider if suspicious circumstances, including the respondent son's involvement in the will-making process, displaced the presumption of knowledge and approval of the will's contents, and whether the deceased understood the legal effect of specific gifts of jointly owned property. The court also examined whether the will accurately reflected the deceased’s intentions, particularly in light of instructions given to both his solicitor and his son, and whether statutory provisions under the Protected Estates Act or the NSW Trustee and Guardian Act operated to "claw back" the value of an adeemed gift. Finally, the court assessed whether an order for further provision from the estate in favour of the appellant was warranted, given the appellant's failure to adequately disclose his financial position.
The court found that the evidence did not displace the presumption of knowledge and approval of the will. It accepted the primary judge's findings regarding the credit of witnesses who testified about the instructions given for the will, both to the solicitor and the son. The court determined that the statutory provisions concerning protected estates did not operate to alter the ademption of the gift of jointly owned property. Regarding the family provision claim, the court concluded that the appellant had failed to adduce sufficient evidence of his financial position to justify an order for further provision. Consequently, both appeals were dismissed, with the appellant ordered to pay the costs of the first and second respondents.
Orders
Orders of the court
CA 2015/319432
(1) Appeal dismissed.
(2) Appellant to pay the costs of the first and second respondents.
CA 2017/156218
(1) Extend time for the filing of the document styled “Notice of further appeal” on 1 May 2017.
(2) Appeal dismissed.
(3) Appellant to pay the costs of the first and second respondents.