Garwoli v Garwoli - [2015] SASC 1

SUPREME COURT OF SOUTH AUSTRALIA
(Civil)
GARWOLI v GARWOLI
[2015] SASC 1
Reasons of Judge Dart a Master of the Supreme Court
14 January 2015
REAL PROPERTY - TORRENS TITLE - CAVEATS AGAINST DEALINGS - EXTENSION
Application under s 191 (d) of the Real Property Act 1886 requiring caveator to show cause why caveat should not be removed - interest claimed as beneficiary under a will - will revoked by later will - no caveatable interest established - caveat to be removed.
Real Property Act 1886 s 191(d); Inheritance (Family Provision) Act 1972 , referred to.
Pua Hor Ong & Ors v Wu You Yang Pty Ltd & Ors [2008] SASC 365; Quek v Beggs (1990) 5 BPR 11,761; Re Robertson and Another (1944) 44 SR (NSW); Swanston Mortgage Pty Ltd v Trepan Investments Pty Ltd and Another [1994] 1 VR 672, considered.

GARWOLI v GARWOLI
[2015] SASC 1
JUDGE DART:

This is an application, made pursuant to the provisions of s 191(d) of the Real Property Act 1886 (“the RPA”), requiring the defendant (caveator) to show cause why a particular caveat should not be removed. In my opinion the defendant has failed to establish an entitlement to have the caveat remain. I propose to order that the caveat be removed.
Background
The plaintiff is the grandson of the late Mrs Ludmila Von Garwoli (“the deceased”) who died on 25 February 2014 aged 103. The defendant is the son of the deceased. The evidence discloses that during the latter years of her life the plaintiff was her principal carer. The deceased owned a residential property at Magill (“the land”) and in 1997 she transferred an interest in the land to the plaintiff as joint tenant.
In April 2009 the defendant took the deceased to see solicitors for the purpose of preparing a new will. The will was executed on 22 April 2009. It appointed the defendant as the sole executor and made him the sole beneficiary of the residuary estate of the deceased. At the same time the solicitors prepared a Memorandum of Transfer. The effect of that document was to sever the joint tenancy with the plaintiff so that the deceased held her joint interest in the Magill property as a tenant in common. If that position had existed at the time of the death of the deceased, her interest in the property would have fallen into her estate.
On 29 May 2009 the deceased made a further will revoking the April will. In that will the plaintiff was appointed as the executor and all of the residuary estate was given to him. At the time that will was executed the solicitor who prepared the will obtained a medical certificate establishing that the deceased had testamentary capacity.
It is not clear whether the April 2009 document purporting to sever the joint tenancy was ever lodged at the Lands Title Office. It appears that as at the time of the deceased’s death the title still recorded…

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 Garwoli v Garwoli

Details

AGLC: Garwoli v Garwoli [2015] SASC 1
Case: [2015] SASC 1
Decision Date: 14 January 2015

CaseChat Overview and Summary

The dispute arises from an application to the court under s 191(d) of the Real Property Act 1886, requiring the defendant to justify the existence of a caveat over property in Magill, South Australia. The plaintiff, the grandson of the deceased, seeks removal of the caveat lodged by the defendant, her son. The caveat was placed to claim an equitable interest in the property based on the deceased's will dated 22 April 2009, which named the defendant as the sole beneficiary. However, this will was revoked by a later will dated 29 May 2009, which named the plaintiff as the executor and sole beneficiary of the residuary estate. The plaintiff argues that the defendant has no legitimate interest in the property to support the caveat.

The court was required to determine whether the defendant had established a caveatable interest under the Real Property Act. This involved examining the nature of the interest claimed by the defendant, the validity of the will dated 22 April 2009, and whether the defendant's interest was extinguished by the later will dated 29 May 2009. The court also had to consider whether the defendant's interest, if any, was sufficient to warrant the continuation of the caveat. The primary issue was whether the defendant's claim to an equitable interest in the property, based on the earlier will, was valid after the execution of the later will.

The court found that the defendant had not established a caveatable interest. It concluded that the defendant's interest under the earlier will was effectively extinguished by the execution of the later will, which appointed the plaintiff as the sole beneficiary. The court held that the defendant had failed to demonstrate any legitimate interest in the property that would justify the continuation of the caveat. Consequently, the court ordered the removal of the caveat, as the defendant's claim to an equitable interest was not supported by the evidence or the law. The court's decision was based on the principle that the later will, executed with testamentary capacity, superseded the earlier will, thereby invalidating the defendant's claim to an interest in the property.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

This is an application, made pursuant to the provisions of s 191(d) of the Real Property Act 1886 (“the RPA”), requiring the defendant (caveator) to show cause why a particular caveat should not be removed. In my opinion the defendant has failed to establish an entitlement to have the caveat remain. I propose to order that the caveat be removed.Background The plaintiff is the grandson of the late Mrs Ludmila Von Garwoli (“the deceased”) who died on 25 February 2014 aged 103. The defendant is the son of the deceased. The evidence discloses that during the latter years of her life the plaintiff was her principal carer. The deceased owned a residential property at Magill (“the land”) and in 1997 she transferred an interest in the land to the plaintiff as joint tenant. In April 2009 the defendant took the deceased to see solicitors for the purpose of preparing a new will. The will was executed on 22 April 2009. It appointed the defendant as the sole executor and made him the sole beneficiary of the residuary estate of the deceased. At the same time the solicitors prepared a Memorandum of Transfer. The effect of that document was to sever the joint tenancy with the plaintiff so that the deceased held her joint interest in the Magill property as a tenant in common. If that position had existed at the time of the death of the deceased, her interest in the property would have fallen into her estate. On 29 May 2009 the deceased made a further will revoking the April will. In that will the plaintiff was appointed as the executor and all of the residuary estate was given to him. At the time that will was executed the solicitor who prepared the will obtained a medical certificate establishing that the deceased had testamentary capacity. It is not clear whether the April 2009 document purporting to sever the joint tenancy was ever lodged at the Lands Title Office. It appears that as at the time of the deceased’s death the title still recorded her as a joint tenant with the plaintiff. The Certificate of Title currently records the plaintiff as the sole registered proprietor. On 17 March 2014 the defendant lodged a caveat on the property at Magill. The caveat claimed:An equitable estate in fee simple in some (at present) indefinable share in the land above described as the sole beneficiary of the estate of his late mother the Caveatee Ludmila Von-Garwoli who died on 25 February 2014 pursuant to a certain Last Will and Testament of Ludmila Von-Garwoli dated 22 April 2009 and/or as a person entitled to make a claim in respect of the estate of a deceased person entitled to claim the benefit of the Inheritance (Family Provision) Act 1972.The legal issues The entitlement to lodge a caveat arises under s 191 of the RPA, which provides as follows:Any settlor of land or beneficiary claiming under a will or settlement, or any person claiming to be interested at law or in equity, whether under an agreement, or under an unregistered instrument, or otherwise howsoever in any land, may lodge a caveat with the Registrar-General forbidding the registration of any dealing with such land, either absolutely or unless such dealing shall be expressed to be subject to the claim of the caveator, or to any conditions conformable to law expressed therein.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.