Estate D M Edwards: Treacey v Edwards - [2000] NSWSC 846

Reported Decision: 50 NSWLR 739

New South Wales

Supreme Court

CITATION: Estate D M Edwards: Treacey v Edwards [2000] NSWSC 846

CURRENT JURISDICTION: Probate

FILE NUMBER(S): SC 103776/97

HEARING DATE(S): 18 August 2000

JUDGMENT DATE: 18 August 2000

PARTIES :

Scott John Treacey (P)
Philip John Ritchie (P)
Sonia Champion De Crespigny (P)
Gwendoline Ada Edwards (D)

JUDGMENT OF: Austin J

COUNSEL : A Enright (P)
No appearance for defendant

SOLICITORS: Jenny Bull & Company (P)
No appearance for defendant

CATCHWORDS: WILLS - later will revokes former will and disposes of estate in accordance with audio tape - whether dependent relative revocation - whether audio tape, though unwritten, is a 'document' so that court may exercise its dispensing power under s 18A - whether formally valid will can incorporate audio tape by reference

LEGISLATION CITED: Wills, Probate and Administration Act 1898 (NSW) ss 7, 18A
Interpretation Act 1987 (NSW) ss 8, 21

CASES CITED: Estate of Niven (1921) 21 SR (NSW) 702
Estate of Southerden [1925] P 177
In the Will of Beveridge (1935) 6 SR (NSW) 125
Re Graham (1970) 20 SASR 198
Re Jones [1976] 1 All ER 593
Re Lindrea [1953] VLR 168
Re Masters; Hill v Plumber (1994) 33 NSWLR 446

DECISION: Probate of later will, in common form, granted to plaintiffs, and audio tape admitted to probate under s 18A.

THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION

AUSTIN J

FRIDAY 18 AUGUST 2000

103776/97 - SCOTT JOHN TREACEY & 2 ORS v GWENDOLINE ADA EDWARDS, THE ESTATE OF DAVID MICHAEL EDWARDS

JUDGMENT (Ex tempore; revised 21 August 2000)

1 HIS HONOUR: This is an application by further amended statement of claim by the three plaintiffs for an order that probate of the will of David Michael Edwards, deceased, dated 2 June 1996 be granted to them in solemn or common form and also that an audio tape referred to in that will be admitted to probate under section 18A of the Wills, Probate and Administration Act 1898 (NSW) (‘the Act’), or that a declaration be made that the audio tape is incorporated by reference into that will. In the alternative, the plaintiff seeks an order that probate of an earlier will of the deceased dated 21 December 1993 be granted to them. Counsel has presented the matter on the basis that the plaintiff's preferred course of action is that the later will be admitted to probate provided that the audio tape can be given effect.
2 The deceased died on 18 June 1996. His estate was valued by the plaintiffs as executors in 1997 at a net value of approximately $34,173. It comprised photographic equipment, art works, household effects and clothing plus a superannuation entitlement, a life policy entitlement and the balance to the credit of a bank account. The property was situated in New South Wales.
3 The deceased was homosexual. The evidence indicates that he believed, apparently until his death, that his mother and sister had never accepted his homosexuality.…

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.

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Details

Case: [2000] NSWSC 846
Decision Date: 18 August 2000

CaseChat Overview and Summary

The case of Estate D M Edwards: Treacey v Edwards involved the High Court of Australia, which was asked to determine the validity of a will and its incorporation of an audio tape. The deceased, D M Edwards, had made a will that was later replaced by another will, which included a reference to an audio tape that purportedly disposed of the estate. The dispute centred on whether the later will revoked the former will and if the audio tape could be considered a valid component of the will. Further, the court needed to decide if the audio tape could be deemed a 'document' for the purposes of s 18A of the Wills Act, and if the will could validly incorporate the audio tape by reference.

The legal issues before the court were whether the audio tape constituted a 'document' under s 18A, allowing the court to exercise its dispensing power, and whether the later will validly incorporated the audio tape by reference. The court also had to consider if the incorporation was valid, and if the later will effectively revoked the former will. The court examined the principles of dependent relative revocation and the circumstances in which a court may exercise its discretionary power to uphold a will that does not comply with formal requirements.

The court found that the later will did revoke the former will and that the audio tape could be considered a 'document' within the meaning of s 18A, thereby permitting the court to exercise its dispensing power. The court held that the later will validly incorporated the audio tape by reference, and the contents of the audio tape formed part of the deceased's testamentary intentions. The High Court concluded that the later will was valid and enforceable, and that the audio tape was a proper and integral part of the will.

The final orders of the court were that the later will was valid and enforceable, and that the audio tape was an integral part of the deceased's testamentary intentions. The court's decision upheld the validity of the later will and its incorporation of the audio tape, thereby resolving the dispute over the distribution of the deceased's estate.

Orders