du Maurier v du Maurier - [2021] NSWSC 83

Supreme Court

New South Wales

Medium Neutral Citation: du Maurier v du Maurier [2021] NSWSC 83
Hearing dates: 11 February 2021
Date of orders: 11 February 2021
Decision date: 11 February 2021
Jurisdiction: Equity
Before: Parker J
Decision:
See [32]

Catchwords:
EVIDENCE – affidavit evidence – advance ruling – trust claim based on allegedly irrevocable mutual wills – evidence of alleged statements of surviving testator five years after wills made – relevance – application of Evidence Act (NSW), s 135 – evidence ruled inadmissible

Legislation Cited:
Civil Procedure Act 2005 (NSW), s 56
Evidence Act 1995 (NSW), ss 55, 135, 192A

Cases Cited:
Birmingham v Renfrew (1937) 57 CLR 666
Hubbard v Mason (Supreme Court (NSW), 9 December 1997, unrep)

Category: Procedural rulings
Parties: David Pierre du Maurier (Applicant/Defendant)
Karen Dominique du Maurier (Respondent/Plaintiff)
Representation:
Counsel:
P Reynolds (Applicant)
M Foran (Respondent)
Solicitors:
Shanahan Tudhope (Applicant)
Watson Mangioni Lawyers (Respondent)

File Number(s): 2018/380965
Publication restriction: Nil

Judgment – EX TEMPORE

Revised from transcript; issued 22 February 2021

Before the Court is an application under s 192A of the Evidence Act 1995 (NSW). The defendant seeks a ruling that part of an affidavit relied upon by the plaintiff is inadmissible. The application is brought in advance of the hearing of the proceedings, as s 192A permits.
The proceedings concern the estate of the late Marika du Maurier, who died in December 2017. She was survived by her three children. They are Philippe du Maurier; David Pierre du Maurier; and Karen Dominique (known as Dominique) du Maurier. For convenience, and without disrespect, I will refer to the members of the deceased's family by their given names.
The deceased's husband, Michael du Maurier, predeceased her, dying in October 2014. His will had been made in March 2012. That will was mirrored by a will made by the deceased at the same time.
Following her husband's death, the deceased amended her will on a number of occasions. Her final will was made in October 2016. Under that will she appointed her son, David, as her executor. He is the defendant in these proceedings. David's sister, Dominique, is the plaintiff.
The deceased's October 2016 will is less favourable to Dominique than the will made by the deceased in March 2012, which mirrored Michael's will. In these proceedings, Dominique relevantly claims that the deceased's later will is ineffective. Her case is that it was inequitable of the deceased, having inherited Michael's property pursuant to the mutual wills made in March 2012, thereafter to make provisions which were less favourable to her than the ones made under those mutual wills.
On the present application there were tendered the affidavits, or some of the affidavits, upon which the parties propose to rely at the trial. The witnesses at the trial will include Dominique, David and Mr Sean Gallagher. Mr Gallagher was the solicitor for Michael and the deceased during Michael's lifetime, and later acted for the deceased. He was responsible for preparing the March 2012 wills. He will…

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 du Maurier v du Maurier

Details

AGLC: du Maurier v du Maurier [2021] NSWSC 83
Case: [2021] NSWSC 83
Decision Date: 11 February 2021

CaseChat Overview and Summary

The dispute arose between du Maurier and du Maurier, a matter heard in the Supreme Court of New South Wales. The central issue was the admissibility of affidavit evidence concerning statements made by the surviving testator five years after the execution of two mutual wills, which the claimant argued evidenced an irrevocable trust. The court was tasked with determining whether this evidence was relevant and admissible under the Evidence Act (NSW), particularly section 135, which deals with the relevance of facts that are not in issue.

The court considered the statutory provision which mandates that evidence of facts that are not in issue is irrelevant unless it affects the credibility of a witness. Here, the claimant attempted to argue that the statements were relevant to prove the existence of an irrevocable trust. However, the court found that the statements were not pertinent to the issue of whether the wills were irrevocable at the time of their creation. Given that the evidence related to events five years after the wills were executed, it was deemed irrelevant to the central issue of the trust's enforceability at the time of the wills' execution.

Ultimately, the court ruled that the affidavit evidence was inadmissible because it did not meet the criteria set out in the Evidence Act. The court emphasised that the relevance of evidence must be assessed based on its connection to the facts in issue at the time the wills were made. The court's decision underscored the importance of strict adherence to the statutory provisions governing evidence admissibility, particularly in cases involving trusts and wills.

The court dismissed the claim for an advance ruling on the trust and ruled that the affidavit evidence could not be admitted. No further orders were made beyond the dismissal of the application.

Orders