Donnolley v Clarke - [2008] NSWSC 522

CITATION: Donnolley v Clarke [2008] NSWSC 522

HEARING DATE(S): 05 & 06 May 2008

JUDGMENT DATE :
6 May 2008

JURISDICTION: Equity

JUDGMENT OF: White J

EX TEMPORE JUDGMENT DATE: 6 May 2008

DECISION: See paras 41-43 of judgment.

CATCHWORDS: SUCCESSION – Wills – Rectification – Principles for effecting rectification – Standard of proof – Clear and convincing proof of actual intention needed - SUCCESSION – Wills – Construction of will – Inconsistent gifts – Same property given to different beneficiaries in different clauses of will – Testator presumed to have intended both gifts to take effect – Each beneficiary takes a moiety - COSTS – Wills, Probate and Administration – Construction of will – Both parties partially successful – Whether costs should be borne out of disputed property or residue – Testator failed to make his intention clear – Costs to be borne out of residue

LEGISLATION CITED: Wills Probate and Administration Act 1898 (NSW)
Civil Procedure Act 2005 (NSW)

CASES CITED: Rawack v Spicer [2002] NSWSC 849
Perpetual Trustee Co Ltd v Wright (1987) 9 NSWLR 18
Gallagher v Adams (1887) 13 VLR 948
In re Potter’s Will Trust (1944) Ch 70
Re Hammond; Hammond v Treharne [1938] 3 All ER 308
Doe d Leicester v Biggs [1803-1813] All ER 546
Sherratt v Bentley (1833-1834) 2 MY&K 149; 39 ER 901
In re Bagshaw’s Trusts (1877) 46 LJ Ch 567
In the Estate of Lupton [1905] P 321
Gravenor v Watkins (1870-1871) LR 6 CP 500
In re Ridgeway; Sutherland v Ridgeway (1900) 26 VLR 254
Ridout v Pain (1747) 3 Atk 486; 26 ER 1080
Anonymous Cro Eliz 9; 78 ER 275
Wallop v Darby Yel 209; 80 ER 137
Re Alexander’s Will Trust [1948] 2 All ER 111
Taylor v Haygarth (Supreme Court of New South Wales, Hodgson J, 7 October 1994, unreported)
The Estate of Davis (Supreme Court of New South Wales, Hodgson J, 28 July 1995, unreported)
Re Barden; Florence v Shekelton-Bardon (Supreme Court of New South Wales, Holland J, 19 December 1983, unreported)

TEXTS CITED: JGR Marty, S Bridge and M Oldham, Theobald on Wills, 16th ed (2001) Sweet & Maxwell
R Jennings, Jarman on Wills, 8th ed (1951) Sweet & Maxwell
D M Haines, Construction of Wills in Australia (2007) LexisNexis Butterworths
Mason & Handler, Succession Law & Practice (looseleaf) LexisNexis Butterworths

PARTIES: Terrence William Donnolley & Anor
v
Michael John Clarke
Estate of Kenneth John Wisemantel

FILE NUMBER(S): SC 103911/07

COUNSEL: Plaintiffs: J Armfield
Defendant: R Colquhoun

SOLICITORS: Plaintiffs: W H Parsons & Associates
Defendant: Paul Couch & Associates

IN THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION

WHITE J

Tuesday, 6 May 2008

103911/07 Terrence William Donnolley & Anor v Michael John Clarke Estate of Kenneth John Wisemantel

JUDGMENT

1 HIS HONOUR: This is an application for rectification of the will of the late Kenneth John Wisemantel, or for declarations as to the proper construction of his will. Mr Wisemantel died on 16 September 2005, aged 75. He…

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 Donnolley v Clarke

Details

AGLC: Donnolley v Clarke [2008] NSWSC 522
Case: [2008] NSWSC 522
Decision Date: 6 May 2008

CaseChat Overview and Summary

The case of Donnolley v Clarke involved a dispute over the interpretation of a will. The deceased, Mr Donnolley, had left a will that contained inconsistent gifts regarding the same property. The will provided for different beneficiaries in different clauses, and the dispute centred on how these conflicting provisions should be reconciled. The court was tasked with determining the proper interpretation of the will and allocating the property in question. Additionally, the court had to decide on the costs of the litigation, specifically whether they should be borne by the disputed property or the residue of the estate.

The primary legal issue was the correct interpretation of the will's provisions. The court needed to decide whether the testator intended both gifts to take effect, thereby allocating the property equally between the beneficiaries. The court also had to address the standard of proof required for rectification of a will. The court found that a clear and convincing proof of the actual intention of the testator was necessary. Furthermore, the court considered the issue of costs, determining whether they should be paid from the disputed property or the residue of the estate. The court held that the testator's intention regarding the costs was not clear, and thus the costs should be borne out of the residue.

In resolving the case, the court first examined the principles of rectification, emphasising that the standard of proof required was clear and convincing evidence of the testator's actual intention. The court held that the testator likely intended both gifts to take effect, leading to an equal division of the property in question between the beneficiaries. This interpretation was based on the presumption that the testator intended both clauses to be effective unless there was clear evidence to the contrary. The court also ruled on the costs issue, determining that because the testator's intention regarding the costs was not clear, the costs should be borne out of the residue of the estate rather than the disputed property.

Consequently, the court ordered that the property in dispute be divided equally between the beneficiaries. Furthermore, the court directed that the costs of the litigation be paid from the residue of the estate. This decision ensured that neither party bore the burden of the costs alone, reflecting the testator's unclear intention regarding this matter.

Orders