Fielder v Burgess

Case [2014] SASC 98


SUPREME COURT OF SOUTH AUSTRALIA

(Civil)

FIELDER v BURGESS

[2014] SASC 98

Judgment of The Honourable Chief Justice Kourakis

7 August 2014

SUCCESSION - MAKING OF A WILL - EXECUTION - INFORMAL DOCUMENT INTENDED TO BE WILL

SUCCESSION - CONSTRUCTION AND EFFECT OF TESTAMENTARY DISPOSITIONS - CONSTRUCTION GENERALLY - ASCERTAINMENT OF TESTATOR'S INTENTION - HOME MADE WILL

SUCCESSION - PROBATE AND LETTERS OF ADMINISTRATION - COSTS

The plaintiff made an application under s 12(2) of the Wills Act 1936 (SA) that an informal will, the handwritten document of the deceased, be admitted to probate and for the proper construction of the will should it be admitted. The plaintiff contends that the deceased did not die intestate, in whole or in part, and therefore the purported will should be admitted as valid under s 12 of the Wills Act 1936 (SA). The plaintiff further contends that on the true construction of the document it operated in such a manner as to dispose of the whole of the deceased estate in favour of the plaintiff. The defendant denies that the purported will should be admitted to probate and asserts that the deceased died intestate.

Held (admitting the will to probate) - the appellant had testamentary capacity when he made the purported will and the evidence strongly supports a finding that the deceased intended the purported will to be his will. The purported inter-vivos gift and the purported will, when read together, are consistent with an intention on the part of the deceased to dispose of the entirety of his property whether by way of inter-vivos gift or by his will (at [35]). On a proper construction of the will it bequeaths the entirety of the deceased’s estate, including the proceeds of the insurance policies, to the plaintiff (at [54]).

Wills Act 1936 (SA) s 12; Family Relationships Act 1975 (SA) s 11A, referred to.
Thomas v Nash (2010) 107 SASR 309; Perrin v Morgan [1943] AC 399; Re Allsop deceased [1968] 1 Ch 39; Marley v Rawlings [2014] 2 WLR 213; Re East Deceased [1964] QWN 16; In re Brigden; Chaytor v Edwin [1938] 1 Ch 205; In Public Trustee v Alexander; Estate of Alexander [2008] NSWSC 1272, discussed.
Gellatly v Curtin [2006] WASC 88; Hearn v La Housse [2007] WASC 99; Banks v Goodfellow (1870) LR 5 QB 549; Stuart v Kirkland-Veenstra (2009) 237 CLR 215; Re the Estate of Hodges (1988) 14 NSWLR 698; In the Estate of TLB (2005) 94 SASR 450; Baumanis v Praulin (1980) 25 SASR 423; In the Estate of Gall [2008] SASC 349; In the Estate of Angius [2013] NSWSC 1895; Wood v Smith [1993] Ch 90; Re Application of Brown; Estate of Springfield (1991) 23 NSWLR 535; Riches v McInnes [2010] WASC 298; In the Estate of Richardson deceased (1986) 40 SASR 594; Hatsatouris v Hatsatouris [2001] NSWSC 408; Bells v Crewes [2011] NSWSC 1159; Re…

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Fielder v Burgess [2014] SASC 98
Case
[2014] SASC 98
Decision Date

CaseChat Overview and Summary

In the matter of Fielder v Burgess, the Court was tasked with determining the validity and interpretation of the last will and testament of Aaron David Burgess. The primary dispute arose between Karen Ann Metcalf, the mother of the deceased and named beneficiary in the will, and other relatives who contested the will's validity and interpretation. The South Australian Supreme Court was called upon to decide the legal issues surrounding the will's interpretation, its validity, and the entitlement to probate.

The central legal issue before the Court was the interpretation of the deceased's will, particularly the bequest of "any and all possessions" to his mother, Karen Burgess. The defendants argued that the will was ambiguous and did not clearly express the deceased's testamentary intentions regarding the entirety of his estate, including insurance policies. They contended that the will should be interpreted in a way that would distribute the estate among the deceased's relatives rather than solely to his mother. Additionally, the defendants challenged the validity of the will, arguing that the deceased lacked testamentary capacity when he executed the will.

The Court, after carefully considering the arguments and evidence presented, found that the will was clear and unambiguous in its bequest of the entire estate to the deceased's mother, Karen Burgess. The Court rejected the defendants' contention that the will was ambiguous and held that the deceased's intention was to give his entire estate to his mother. Furthermore, the Court found no evidence to support the claim that the deceased lacked testamentary capacity, thus affirming the will's validity. The Court also noted the long-standing principle that where litigation is caused by the testator's unclear expression of testamentary intentions, costs should be paid out of the estate.

Following the Court's decision, the following orders were made: the will was pronounced valid and granted probate; Karen Ann Metcalf, as the named executor in the will, was granted probate; the will was declared to bequeath the entirety of the deceased's estate to Karen Ann Metcalf; and the costs of the proceedings were ordered to be paid out of the estate on a party-party basis. This decision resolved the dispute over the interpretation and validity of the will, ensuring that the deceased's clear intentions were upheld.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

KOURAKIS CJ
For the above reasons I find that on a proper construction of the will, which I would admit to probate, bequeaths the entirety of the deceased’s estate, including the proceeds of the insurance policies, to his mother.Conclusion After delivering the above reasons and hearing from the parties I made the following orders:1.Pursuant to s 12(2) of the Wills Act 1936 (SA) pronounces for the force and validity of the last will and testament of Aaron David Burgess late of 60 The Grove Way, Salisbury Heights in South Australia, Commercial Officer deceased being the script bearing date the 15th day of November 2011 and being the script marked “A” by the Court in these proceedings (“the will”) and propounded on behalf of the plaintiff.2.Orders that probate of the will of the deceased be granted to Karen Ann Metcalf (formerly named Karen Ann Fielder and called Karen Burgess in the will) one of the executors named in the will.3.Declares that upon the true construction of the will of the deceased, by the words “I wish to give any and all possessions that I have left to my mother Karen Burgess” contained therein, the deceased made a gift of the whole of the estate of the deceased to the plaintiff.4.Orders the costs of and incidental to these proceedings of the plaintiff and defendant on a party-party basis be paid out of the estate of the deceased. The costs order was made by consent but there are several observations I wish to make. There is a long line of authority to the effect that where probate litigation has been caused, or contributed to, by the way in which the testator made his testamentary intentions known it is appropriate that costs be ordered to be paid out of the estate (the probate costs rule). The authorities are conveniently collected in the judgment of Gray J in Hall v Carney (No 2).[29][29] [2012] SASCFC 105 at [8]-[12]. The principle has a long lineage, but it is perhaps so long that it has become something of an anachronism. For centuries before the judicature reforms of the 19th century, grants of probate were the concern of the Ecclesiastical Court. Ecclesiastical courts operated according to forms of Roman law with an inquisitorial judge rather than common law style juries. These courts claimed jurisdiction over substantive matters that concerned salvation and church order including sexual misconduct, determinations and annulment of marriage, defamation and the personal estates of deceased persons. It is perhaps not surprising that an inquisitorial jurisdiction which was concerned with public rectitude adopted such a costs principle. The application of the costs rule in probate cases was recently considered in the English case of Shovelar v Lane.[30] In that case a husband and wife, who each had children from previous marriages, made mutual wills leaving their residuary estate to the other if he or she survived 30 days, failing which it fell to their children, grandchildren and other relatives. The husband survived the wife and later made a new will that made no provision for his wife's descendants. Following the husband’s death, the wife’s descendants brought a claim against both the executors of the husband’s estate and descendants. The claimants successfully relied on the doctrine of mutual wills, claiming that the executors held the husband’s estate on constructive trust for those entitled under his earlier will. On the question of costs, the defendants submitted that the Judge should apply the rule in probate actions being that if a testator were the cause of litigation then the costs ought to come out of the estate. The Judge rejected this submission and held that the claimants were entitled to have their costs paid by the defendants. The claimants appealed against certain terms of the costs order and the defendants cross-appealed against the Judge’s conclusion that the costs should not be paid out of the estate.[30] [2012] 1 WLR 637.

Ratio Decidendi

Legal Principle Established

Established by: KOURAKIS CJ

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