Evans v Gibbs - [2015] NSWSC 432

Supreme Court

New South Wales

Medium Neutral Citation: In the Estate of the late Ronald Robert Irvine; Evans v Gibbs [2015] NSWSC 432
Hearing dates: 15 April 2015
Decision date: 17 April 2015
Jurisdiction: Equity Division
Before: Stevenson J
Decision:
Declaration and order for an informal will to be admitted to probate

Catchwords: SUCCESSION – wills, probate and administration – making of will – execution – informal document intended to be will – disputed document written by hand in notebook – deceased had earlier will – no dispute document prepared by deceased – whether document intended to be a will – testamentary intention clear from language of document – extrinsic evidence consistent with document – disputed document admitted to probate
Legislation Cited: Wills, Probate and Administration Act 1898 (NSW)
Succession Act 2006 (NSW)
Cases Cited: Estate Moran; Teasel v Hooke [2014] NSWSC 1839
Estate of Floris Verzijden; Newman v Brinkgreve [2013] NSWSC 371
Estate of Laura Angius; Angius v Angius [2013] NSWSC 1895
Estate of Masters; Hill v Plumber (1994) 33 NSWLR 446
Hatsatouris v Hatsatouris [2001] NSWCA 408
Category: Principal judgment
Parties: Peter James Evans (Plaintiff)
Margaret Gibbs (Defendant)
Representation:
Counsel:
B Townsend (Plaintiff)
R D Marshall (Defendant)
Solicitors:
Peter Evans & Associates (Plaintiff)
Patey & Murphy Solicitors (Defendant)

File Number(s): SC 2013/380073

Judgment

Introduction

These proceedings concern the estate of the late Ronald Robert Irvine (“the deceased”).
The deceased died on 11 December 2013 at the age of 67 years. The deceased never married and had no children.
The deceased was born right handed. However, in 1985 he suffered severe injuries in a work place accident, losing his right arm, left leg and right leg below the knee.
On 1 February 1994 the deceased made a will (“the 1994 Will”).
At some time during 2012, the deceased wrote over five pages in a red covered notebook. The issue in these proceedings is whether, for the purposes of s 8 of the Succession Act 2006 (NSW), the deceased intended what he wrote in his red notebook to also be his will, thus revoking the 1994 Will. I will refer to the five pages as the “Informal Will”.
If the 1994 Will is to be regarded as the deceased’s last will, its effect, in the events that have happened since 1994, is that the plaintiff, Mr Peter Evans (a solicitor) is the deceased’s executor and the deceased’s estate is to be divided equally between the following eight people:

his sister, the defendant, Mrs Margaret Gibbs;

each of his seven nieces, being Mrs Gibbs’s daughters, Ms Susan Gibbs, Ms Louise Gibbs, Ms Michelle Gibbs and Ms Nerida Sharp, and the daughters of his late brother Colin, Ms Nicole Milgate, Ms Simone Irvine and Ms Kirsten Nelson.

By summons filed on 29 May 2014, Mr Evans seeks a grant of probate of the 1994 Will.
By cross-summons filed on 20 February 2015, Mrs Gibbs seeks a declaration that the deceased intended the Informal Will to be his last will and a grant…

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 Evans v Gibbs

Details

AGLC: Evans v Gibbs [2015] NSWSC 432
Case: [2015] NSWSC 432
Decision Date: 17 April 2015

CaseChat Overview and Summary

In the case of Evans v Gibbs, the matter before the court was the interpretation of a handwritten document found in a notebook, which was asserted to be the last will and testament of a deceased person. The document was contested by the respondent, who argued that it did not meet the legal requirements to be considered a valid will. The deceased had previously executed a formal will, which was undisputed. The primary issue for the court was to determine whether the disputed document was intended by the deceased to be a will and, if so, whether it should be admitted to probate.

The court examined the language used in the handwritten document, finding that it clearly expressed the deceased's testamentary intentions. It also considered extrinsic evidence, which supported the contention that the document was intended to be the deceased's will. The court was satisfied that the deceased had the necessary testamentary capacity and that the document was a valid expression of the deceased's wishes. The court concluded that the disputed document was indeed intended to be the deceased's will and should be admitted to probate.

Accordingly, the court found in favour of the applicant and ordered that the disputed document be admitted to probate as the last will of the deceased. This decision recognised the document as a valid testamentary instrument, superseding the previously executed formal will, which was no longer in contention.

Orders