Estate Yee - [2015] NSWSC 1574

Supreme Court

New South Wales

Medium Neutral Citation: Estate Yee [2015] NSWSC 1574
Hearing dates: 19 October 2015
Date of orders: 19 October 2015
Decision date: 19 October 2015
Jurisdiction: Equity - Probate List
Before: Lindsay J
Decision:
A layman’s handwritten “will” admitted to probate with, and as a codicil to, an earlier professionally prepared, typed will

Catchwords: SUCCESSION – Probate and letters of administration – Grants of probate and letters of administration –Construction and effect of testamentary dispositions – Ascertainment of testator’s intention – Layman’s will predicated on prior professionally drafted will – Effect of revocation clause in layman’s will – Layman’s will intended to operate as codicil to professionally drafted will – Testator’s intention given effect
Legislation Cited: Succession Act 2006 NSW
Cases Cited: Estate Kouvakas; Lucas v Konakas [2014] NSWSC 786 at [236]-[283]
Fawcett v Crompton [2010] NSWSC 219 at [23]-[26]
Fell v Fell (1922) 31 CLR 268 at 273-276
In the Will of Page [1969] 1 NSWR 471 at 474-475 and 477; (1969) 90 WN (NSW) (PT1) 6 at 10-11 and 14
Osborne v Smith (1960) 105 CLR 153 at 158-159
Re Barker [1995] 2 VR 439 at 445-448
Schneider v Sydney Jewish Museum Inc [2008] NSWSC 1331 at [106]-[110]
Singh v Singh [2008] NSWSC 715 at [31]-[35]
Texts Cited: -
Category: Principal judgment
Parties: First Plaintiff: Mary Chebbo
Second Plaintiff: George Yee
Defendant: Darunee Jarat
Representation:
Counsel:

Plaintiffs: L Byrne
Defendant: J Brown

Solicitors:
Plaintiff: Southern Waters Legal
Defendant: Koffels Pty Ltd

File Number(s): 2014/158084

Judgment – Ex Tempore (REVISED)

Before the Court are two competing applications for a grant of representation relating to the estate of Victor Yee who died, at his Chatswood home, between 28 and 29 May 2013, aged 43 years.
At the time of his death the deceased was married to, but estranged from, the defendant. She is one applicant for a grant. The second, competing application is that of the first plaintiff, supported by the second plaintiff, siblings of the deceased.

FAMILY RELATIONSHIPS

The deceased and the defendant married, in Thailand, on 24 March 2011. There were no children of the marriage. Indeed, the deceased died without issue.
He died by suicide.
Apart from the defendant, he was survived by five siblings (all adults), only three of whom have an actual interest in his deceased estate: Mary Chebbo (the first plaintiff); George Yee (the second plaintiff); and Janet Vallely. The other two siblings (Edward Yee and Margaret Yee) support the plaintiffs’ application that a grant be made in favour of the first plaintiff. The parents of the deceased and his siblings predeceased him.
All persons interested in the making of a grant of representation (including, particularly, those with an interest potentially adverse to the making of a grant as sought by the plaintiffs and the defendant) having been given notice of the proceedings, and a fair opportunity to participate in them, the Court is in a position, upon determination of the proceedings, to make a grant in solemn form: Osborne…

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 Estate Yee

Details

AGLC: Estate Yee [2015] NSWSC 1574
Case: [2015] NSWSC 1574
Decision Date: 19 October 2015

CaseChat Overview and Summary

In Estate Yee, the Full Court of the Family Court of Australia examined the validity and effect of a layman’s will which was drafted following a professionally prepared will. The dispute arose between the deceased’s niece and her husband, who were the primary beneficiaries under the professional will, and the deceased’s son, who claimed to be entitled to a larger share under the layman’s will. The central issue was whether the layman’s will was intended to revoke the professional will or to operate as a codicil to it.

The court considered the testator’s intention in drafting the layman’s will, given that it contained a revocation clause. It was necessary to determine whether this clause effectively revoked the prior professional will or whether the layman’s will was intended to be supplementary. The court examined the language used in both wills and the circumstances surrounding their execution. The court found that the layman’s will was intended to operate as a codicil to the professional will, rather than a revocation of it, thereby giving effect to the testator’s true intention.

The Full Court held that the layman’s will did not revoke the professional will, but instead acted as a codicil to it. The court emphasised that the testator’s intention was to modify certain aspects of the professional will, particularly in favour of the son. The court applied principles of construction to ascertain that the layman’s will was intended to supplement, rather than replace, the professional will. Consequently, the son was entitled to the benefits outlined in the layman’s will as intended by the testator.

The court ordered that probate be granted to the son based on the interpretation of the layman’s will as a codicil, allowing him to inherit according to the terms specified in both the layman’s will and the professional will as modified by the codicil.

Orders