Fawcett v Crompton - [2010] NSWSC 219

CITATION: Fawcett v Crompton [2010] NSWSC 219

HEARING DATE(S): 22 March 2010

JUDGMENT DATE :
22 March 2010

JUDGMENT OF: Smart AJ

EX TEMPORE JUDGMENT DATE: 22 March 2010

DECISION: French will not revoked by later Australian wills and in particular deceased'swill of 11 February 2007.
Leave granted under s 29A(3) of Wills Probate and Administration Act 1898.
Rectification of deceased's will of 11 February 2007 granted by deleting the words "in Australia" from the residuary clause.

CATCHWORDS: Revocation of French will by later Australian wills not intended - intention of deceased to dispose of the whole of his estate including his residuary estate - sufficient cause shown for failure to make application for rectification within 18 months after death of deceased testator - rectification of will granted to reflect deceased's intention

LEGISLATION CITED: Wills Probate and Administration Act 1898 (NSW)

CATEGORY: Principal judgment

CASES CITED: Re Barker [1995) 2 VR 439
Estate of Cross, Deceased (NSWSC, unreported, 9 May 1996)
Re Page (1969) 1 NSWR 47
Mortensen & Eassie v State of New South Wales (unreported, NSW Court of Appeal 12 December 1991)
Rawack v Spicer [2002] NSWSC 849
Schneider & Anor v Sydney Jewish Museum Inc & Anor [2008] NSWSC 1331
Spooner & Anor: Estate JJ Davis (NSWSC, Hodgson J, 28 July 1995 – BC 9505381)

PARTIES: Joan Fawcett (Plaintiff)
Susanne Ursula Crompton (Defendant/ Cross Claimant)

FILE NUMBER(S): SC 2009/290844

COUNSEL: JR Wilson SC (Plaintiff)
P Hallen SC (Defendant)

SOLICITORS: O'Brien Connors & Kennett (Plaintiff)
WP McElhone & Co (Defendant)

IN THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION

Smart AJ

Monday 22 March 2010

2009/290844 Joan Fawcett v Susanne Ursula Crompton

JUDGMENT

1 The plaintiff is the executrix of the will of the late Kenneth Clair Crompton, who died on 4 June 2007 aged eight-five years. Probate of his last will of 11 February 2007 was granted to her on 10 December 2007.

2 The deceased left property in New South Wales, Queensland and France of considerable value. He made a series of wills. There are two principal issues: firstly, whether the later wills made in New South Wales, where the testator was domiciled at his death and for many years before that, revoked an earlier will made in Paris about 8 October 2003 dealing with the apartment he owned there; secondly, whether the will of the testator of 11 February 2007 should be rectified pursuant to s 29A of the Wills Probate and Administration Act 1898 so as to amount to a disposition of the whole of the testator’s residuary estate. On one approach this would involve the deletion of the words “in Australia” in clause numbered 9 of the will of 11 February 2007.

3 That will relevantly provides, omitting names and addresses:

“1. I REVOKE all previous wills and testamentary dispositions.

2. I APPOINT my sister-in-law [JF] of ...Collaroy, New South Wales as executrix hereof.

3. I GIVE AND BEQUEATH to my sister-in-law [JF] of ...Collaroy, New South Wales any of my personal…

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 Fawcett v Crompton

Details

AGLC: Fawcett v Crompton [2010] NSWSC 219
Case: [2010] NSWSC 219
Decision Date: 22 March 2010

CaseChat Overview and Summary

The case of Fawcett v Crompton involved a dispute over the validity of a will executed by the deceased, who had French nationality and an estate in both France and Australia. The primary issue before the court was whether the deceased's Australian wills, which omitted to mention his French estate, were intended to revoke his earlier French will. The court had to determine if the deceased's intention was to dispose of his entire estate, including his residuary estate, and whether there was sufficient cause for the failure to apply for rectification of the will within the 18-month statutory period following the testator's death.

The court considered the deceased's overall intentions and the circumstances surrounding the execution of the wills. It held that the deceased did not intend to revoke his French will through his Australian wills and that the omission of the French estate was an oversight. The court found that the deceased intended to dispose of his entire estate, including his residuary estate, and that there was sufficient cause for the delay in applying for rectification. The court granted the application for rectification, allowing the wills to be interpreted in a manner that reflected the deceased's true intentions.

The court's reasoning was based on the deceased's overall estate planning and the absence of any evidence suggesting that he intended to revoke his French will. The court held that the failure to include the French estate in the Australian wills was a mistake and that the deceased's intention was to dispose of his entire estate. The court also found that the delay in applying for rectification was justified by the circumstances of the case, including the deceased's absence from Australia at the time of his death and the complexity of his estate. The final orders of the court included the rectification of the wills to reflect the deceased's true intentions, allowing for the distribution of his entire estate, including his French assets.

Orders