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Etherton v Mitchelmore

Etherton v Mitchelmore

Case [2024] NSWSC 170 29 February 2024

Testamentary Intention

Costs

Succession Act 2006 (NSW), s 8

Succession Law

Civil Litigation & Procedure

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Supreme Court

New South Wales

Medium Neutral Citation: Etherton v Mitchelmore [2024] NSWSC 170
Hearing dates: 5 and 6 February 2024
Date of orders: 29 February 2024
Decision date: 29 February 2024
Jurisdiction: Equity
Before: Basten AJ
Decision:
(1)   Direct that evidence in each of the probate and family provision proceedings be evidence in the other, subject to relevance.
(2)   Dismiss the statement of claim in matter 2022/368714 filed 7 December 2022.
(3)   Subject to compliance with the Probate Rules of the Court, grant probate in solemn form of the will dated 10 August 2016 of Caterina Felice Bohen to Dean Joseph Mitchelmore, solicitor.
(4)   Remit the proceeding to the Senior Deputy Registrar in Probate to complete the grant.
(5)   Order that the executor’s costs of the proceeding be paid from the estate, to be assessed on an indemnity basis.

Catchwords:
SUCCESSION – informal document – testamentary intention – intention that document be an alteration to a will – document purporting to express testamentary intention – document signed by testator – testator with history of making false statements in relation to her testamentary intentions – failure to see solicitor before or after preparing document – failure to deliver document for safekeeping – Succession Act 2006 (NSW), s 8
COSTS – party proposing informal will to be admitted to probate – applicant unsuccessful – whether applicant’s costs should be paid out of the estate –document purported to disinherit testator’s family – likely effect of pending family provision claims – whether pursuit of claim reasonable

Legislation Cited:
Civil Procedure Act 2005 (NSW), ss 56, 60, 98
Evidence Act 1995 (NSW), s 140
Succession Act 2006 (NSW), ss 6, 8, 11, Pt 3.2, 100
Wills, Probate and Administration Act 1898 (NSW), s 17
Uniform Civil Procedure Rules 2005 (NSW), r 42.1

Cases Cited:
Briginshaw v Briginshaw (1938) 60 CLR 336; [1938] HCA 34
Fast v Rockman [2013] VSC 18
Re Estate of Hodges (dec’d); Shorter v Hodges (1988) 14 NSWLR 698
Housing Commission of New South Wales v Falconer [1981] 1 NSWLR 547
Campton v Hedges [2016] NSWSC 201
Hatsatouris v Hatsatouris [2001] NSWCA 408
Middlebrook v Middlebrook (1962) 36 ALJR 216
Estate Moran; Teasel v Hooke [2014] NSWSC 1839
Perpetual Trustee Company Limited v Baker [1999] NSWCA 244
Shorten v Shorten (No 2) [2003] NSWCA 60
Ohn v Walton (1995) 36 NSWLR 77

Category: Principal judgment
Parties: Robin Etherton (Plaintiff)
Dean Joseph Mitchelmore (Defendant)
Representation:
Counsel:
RW Tregenza (Plaintiff)
JE Armfield (Defendant)
Solicitors:
Lander & Daniel Pty Ltd (Plaintiff)
CP White & Sons (Defendant)

File Number(s): 2022/368714
Publication restriction: N/A

HEADNOTE

[This headnote is not to be read as part of the judgment]

The plaintiff, Robin Etherton, commenced proceedings in relation to the estate of Caterina Felice Bohen (the deceased). The plaintiff sought to have an informal document (a handwritten note) given to him by the deceased in December 2020 admitted to probate as an alteration to the deceased’s 2016 will under s 8 of the Succession Act 2006 (NSW). The…

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 Etherton v Mitchelmore

Details

AGLC: Etherton v Mitchelmore [2024] NSWSC 170
Case: [2024] NSWSC 170
Decision Date: 29 February 2024

CaseChat Overview and Summary

The dispute in Etherton v Mitchelmore involved the admission of an informal document to probate as part of the deceased's estate. The document in question was intended to alter the deceased's previous will, disinheriting her family. The case was heard in the Supreme Court of New South Wales, with the respondent seeking to have the document admitted as a valid testamentary alteration. The respondent's unsuccessful application to admit the document to probate led to a subsequent application for costs.

The central legal issues before the court were whether the document expressed the deceased's testamentary intention, and if the applicant's pursuit of the claim was reasonable given the informal nature of the document and the likely effect of pending family provision claims. The court had to consider the provisions of section 8 of the Succession Act 2006 (NSW), which governs the admission of informal documents to probate, alongside the circumstances surrounding the creation and execution of the document.

The court found that the document did not clearly express the deceased's testamentary intention, given her history of making false statements about her testamentary intentions and the fact that she had not consulted a solicitor before or after preparing the document. Additionally, the document had not been delivered for safekeeping, which further undermined its validity. The court also determined that the applicant's pursuit of the claim was not reasonable, as the document was likely to result in family provision claims that would consume a significant portion of the estate. Consequently, the court ruled that the applicant's costs should not be paid out of the estate.

The court ordered that the applicant's costs were not to be paid out of the estate, and the informal document was not admitted to probate. This decision highlights the importance of clear testamentary intention and the formalities required for the validity of informal documents under the Succession Act 2006 (NSW).

Orders