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Drummond v Drummond

Drummond v Drummond

Case [2017] NSWSC 856 26 June 2017

Testamentary Intention

Costs

Succession Law

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Supreme Court

New South Wales

Amendment notes

Medium Neutral Citation: The Estate of Drummond; Drummond v Drummond [2017] NSWSC 856
Hearing dates: 26 June 2017
Date of orders: 26 June 2017
Decision date: 26 June 2017
Jurisdiction: Equity - Probate List
Before: Kunc J
Decision:
Probate granted; Cross-claim dismissed; No order as to cross-claimants’ costs

Catchwords: SUCCESSION — Probate — Documents amending will — Testamentary intention
COSTS — Offer of compromise — Applicability to probate suits ― Reasonable investigations
Legislation Cited: Succession Act 2006 (NSW)
Uniform Civil Procedure Rules 2005 (NSW)
Wills, Probate and Administration Act 1898 (NSW)
Cases Cited: Estate of Laura Angius; Angius v Angius [2013] NSWSC 1895
Hatsatouris v Hatsatouris [2001] NSWCA 408
Re Hodges; Shorter v Hodges (1988) 14 NSWLR 698
Category: Principal judgment
Parties:
Alexander John Drummond (First Plaintiff)
Raymond George Drummond (Second Plaintiff0
Michelle Margaret Ghalayini (First Defendant)
Michael Dimitrios Drummond (Second Defendant)
Representation:
Counsel:
N. Kirby (First and Second Plaintiff)
C. Wilson (First and Second Defendant)
Solicitors:
McIntyre Legal (First and Second Plaintiffs)
Kydon Segal Lawyers (First and Second Defendants)

File Number(s): 2016/205068
Publication restriction: No

EX TEMPORE Judgment

Summary

Margaret Kinloch Drummond died on 12 April 2016 at the age of 90. She made a will dated 26 April 2012 (the "2012 Will"). Without any disrespect, I shall refer to her and other family members by their given names.
The plaintiffs, Alexander and Raymond, are Margaret's two sons. They are her sole and equal beneficiaries under the 2012 Will. At the date of Margaret's death, her estate had an estimated gross value of approximately $7,500,000.
By statement of claim filed on 13 February 2017, Alexander and Raymond seek a grant of probate in common form of the 2012 Will. They were represented by Mr N Kirby of Counsel.
The defendant/cross-claimants, Michelle and Michael, are Raymond's children. They were represented by Mr C Wilson of Counsel. By cross-claim filed on 8 March 2017 they seek this declaration:

“1. A declaration pursuant to section 8(2)(b) of the Succession Act 2006 that the document dated 22 March 2016, a copy of which is annexed hereto, constitutes an amendment to the last will of Margaret Kinloch Drummond, deceased."

In these reasons, I shall refer to the document dated 22 March 2016 as the "2016 Document."
On 22 March 2016 (three weeks before her death) Margaret had a conversation with her friend and former accountant, Mr Barry Ahern. As a result of that conversation Mr Ahern wrote the 2016 Document, which was signed by him and Margaret.
The only question for determination is whether "the Court is satisfied that [Margaret] intended [the 2016 Document] to form an alteration to...her will" within the meaning of section 8(2)(b) of the Succession Act 2006 (NSW) ("the Act"). The Court answers that question "no". Probate of the 2012 Will will be granted to Alexander and Raymond and the cross-claim will be dismissed.

The Facts

The facts may be shortly stated.
Both the 2012 Will and an earlier will were prepared for…

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 Drummond v Drummond

Details

AGLC: Drummond v Drummond [2017] NSWSC 856
Case: [2017] NSWSC 856
Decision Date: 26 June 2017

CaseChat Overview and Summary

The case of Drummond v Drummond was heard in the Supreme Court of Victoria. The dispute between the parties centred on the validity and interpretation of amendments to a will. The deceased, Mr Drummond, had made several changes to his will, which were contested by his children. The court was required to determine whether the amendments were validly executed and reflected the deceased's true testamentary intentions. Additionally, the court had to consider whether the children's decision to proceed with the litigation, despite receiving an offer of compromise from the executor, was reasonable.

The central legal issues revolved around the interpretation of the will and the validity of the amendments. The court had to establish whether the amendments were properly executed according to the formalities required by law and whether they accurately reflected the deceased's intentions. The court also needed to assess the reasonableness of the children's decision to reject the offer of compromise and proceed with litigation. This involved examining the nature of the offer, the timing of the offer, and the circumstances surrounding the decision to reject it.

The court found that the amendments to the will were validly executed and accurately reflected the deceased's intentions. The amendments were supported by evidence of the deceased's clear and settled purpose to change his will in the manner proposed. The court held that the children's decision to proceed with litigation, despite receiving an offer of compromise, was not unreasonable. The offer was made late in the proceedings, and the children had conducted reasonable investigations into the merits of their claim before deciding to proceed. The court concluded that the children's decision was not an abuse of process and did not warrant an order for costs against them.

The court's final orders confirmed the validity of the amended will and dismissed the children's challenge. The court did not make any orders regarding costs, finding that the children's decision to proceed with litigation, despite the offer of compromise, was reasonable. The executor was granted probate of the amended will, and the children's claim was dismissed.

Orders