Hall v Carney

Case [2012] SASCFC 76

SUPREME COURT OF SOUTH AUSTRALIA

(Full Court)

HALL v CARNEY & ORS

[2012] SASCFC 76

Judgment of The Full Court

(The Honourable Justice Gray, The Honourable Justice Vanstone and The Honourable Justice Stanley)

21 June 2012

SUCCESSION - WILLS, PROBATE AND ADMINISTRATION - THE MAKING OF A WILL - TESTAMENTARY INSTRUMENTS - UNDUE INFLUENCE - CIRCUMSTANCES AROUSING SUSPICION

SUCCESSION - WILLS, PROBATE AND ADMINISTRATION - THE MAKING OF A WILL - TESTAMENTARY INSTRUMENTS - KNOWLEDGE AND APPROVAL OF CONTENTS - GENERALLY

SUCCESSION - EXECUTORS AND ADMINISTRATORS - PROCEEDINGS BY EXECUTORS OR ADMINISTRATORS

Appeal from the decision of a Judge of this Court pronouncing the force and validity of a will - the deceased duly executed a will on 17 November 2006 - where the will was in substantially different terms to previous wills executed by the deceased - whether suspicious circumstances arose which were sufficient to dispel the presumption of knowledge and approval - whether, in any event, the deceased knew and approved the contents of her will.

Held per Gray J (Vanstone and Stanley JJ agreeing): Appeal dismissed - suspicious circumstances arose, leading to the conclusion that the presumption of knowledge and approval did not arise - however, the trial Judge was correct in concluding that the deceased knew and approved the contents of her will.

Wills Act 1936 SA; Inheritance (Family Provision) Act 1972 (SA), referred to.
Roos v Karpenkow (1998) 71 SASR 497, considered.

HALL v CARNEY & ORS
[2012] SASCFC 76

Full Court        Gray, Vanstone and Stanley JJ

GRAY J.

  1. This is an appeal from the decision of a Judge of this Court pronouncing the force and validity of a will. 

  2. The deceased, Kathleen Elliott, died in her 92nd year in January 2007.  Mrs Elliott executed her last will on 17 November 2006.  The will was prepared by solicitors and appointed her daughter, Vivienne Kathleen Carney, and two legal practitioners as her executors and trustees.  All formalities under the Wills Act 1936 (SA) were complied with.

  3. The executors sought a grant of probate of the will.  However, Mrs Elliott’s son, Grantley Thomas Aubrey Hall, entered a caveat against the grant.  The caveat was warned and an appearance was entered to that warning.  As a consequence, the executors commenced the within proceedings seeking an order from the Court pronouncing the force and validity of the will in solemn form.  Mrs Elliott’s husband, Geoffrey Gordon Elliott, was later added as a plaintiff in his capacity as a beneficiary.  Accordingly, Mr Douglas, Vivienne and Mr Elliott are the plaintiffs in the within proceedings.

  4. The substantive effect of the 17 November 2006 will is to leave a house property at Plympton South to Vivienne and to leave the residue to be divided equally between Mr Elliott, Grantley and Vivienne.

  5. The trial Judge concluded that a presumption arose that Mrs Elliott knew and approved of the contents of her will.  In reaching this conclusion, the Judge rejected the submission of Grantley that relevant circumstances of suspicion had arisen sufficient…

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Hall v Carney [2012] SASCFC 76
Case
[2012] SASCFC 76
Decision Date

CaseChat Overview and Summary

This case concerned an appeal to the Full Court of the Supreme Court of South Australia regarding the validity of a will executed by Mrs Elliott on 17 November 2006. The appeal was brought by Grantley Hall, one of Mrs Elliott's sons, who challenged the decision of a single judge of the court that had pronounced the force and validity of the will. The dispute centred on whether suspicious circumstances surrounding the making of the will were sufficient to displace the presumption of knowledge and approval, and whether, independently of that presumption, the deceased knew and approved of the contents of her will.

The legal issues before the Full Court were twofold. Firstly, whether the circumstances surrounding the execution of the 2006 will gave rise to suspicion, thereby requiring the propounders of the will to demonstrate knowledge and approval, and if so, whether they had successfully done so. Secondly, even if the presumption of knowledge and approval did not arise due to suspicious circumstances, whether the evidence independently established that Mrs Elliott knew and approved of the contents of her will. Grantley Hall argued that the trial judge had erred in concluding that the presumption of knowledge and approval arose and, further, that the propounders had failed to establish their case even without the aid of the presumption.

The Full Court, comprising Gray, Vanstone, and Stanley JJ, dismissed the appeal. Gray J, delivering the leading judgment, acknowledged that suspicious circumstances had indeed arisen in relation to the will, which meant the presumption of knowledge and approval did not automatically apply. However, his Honour found that the trial judge's conclusion that Mrs Elliott knew and approved of the contents of her will was correct, based on a close analysis of the evidence, particularly the testimony of Mr Douglas from Caldicott & Co, who was involved in preparing the will. Vanstone and Stanley JJ agreed with Gray J's reasons.

Orders

Orders of the court

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Background

Background to the litigation

On the appeal, Grantley submitted that the Judge had erred in concluding that the presumption of knowledge and approval arose and further erred in concluding that even without the aid of the presumption, the propounders of the will had made out their case that the will be admitted to probate in solemn form. The Facts Mrs Elliott was born in January 1915. In June 1940, she married Aubrey Hall. They had two boys, Grantley and Marcus. Vivienne was adopted by Mrs Elliott and Mr Hall soon after her birth in 1960. Marcus died in 1973. Aubrey Hall died in 1970. Mrs Elliott married Mr Elliott in 1976 and this marriage continued until her death. Following the death of her first husband, Mrs Elliott continued to conduct a dance studio business. Vivienne was previously married and has two children who in November 2006 were aged nine and 11 years. Grantley has separated from his wife. He does not have any children. In November 1999, Mrs Elliott purchased a property at Dawson Ave, Plympton South. She did this to provide accommodation for Vivienne and her two children, then aged two and four years. Vivienne was apparently in difficult financial circumstances. The property was purchased in Mrs Elliott’s name. Vivienne paid rent and some outgoings, and made some improvements. The property became the family home for Vivienne and her children. Grantley considered the purchase of the Plympton South property imprudent. He expressed his annoyance to Mrs Elliott in strong terms and this led to a period of prolonged estrangement. Medical evidence established that Mrs Elliott was in good health until early December 2006, when metastic skeletal cancer was first diagnosed. Mrs Elliott was admitted to hospital where she remained until transferred to a hospice shortly before her death. Testamentary Dispositions Mrs Elliott made many wills during the course of her life. Of those in evidence, six were made between 1980 and September 2003. The trial Judge traced the history of those wills in some detail. The wills over this period provided for a modest legacy to Mr Elliott and a sharing of the balance of the estate between Vivienne and Grantley. On 12 December 2005, Mrs Elliott made the first of four wills prepared by Caldicott & Co. From this time, Mr Douglas of Caldicott & Co became involved in Mrs Elliott’s testamentary affairs. The December 2005 will increased the legacy to Mr Elliott, devised the Plympton South property to Vivienne and made a bequest of shares and debentures to Grantley. At this time, it was thought that the shares and debentures were about of equal value to the Plympton South property. Shortly after making this will, Mrs Elliott received advice that the shares were of much greater value than she had previously understood. As a consequence, she wished to amend her will to ensure that her children shared her estate equally, as closely as possible. On 17 January 2006, Mrs Elliott executed a further will. Apart from some specific bequests, the principal features of the will made on 17 January 2006 were: Mr Elliott was to receive a bequest of $150,000.00; Vivienne was to receive the property at Dawson Avenue; Grantley was to receive a pecuniary legacy equal to the value of the property at Dawson Avenue; Vivienne was to have an option to purchase the property at 247 Anzac Highway; Mr Elliott was to have a right of occupation in that property for 12 months after Mrs Elliott’s death; and Vivienne and Grantley were to share the residuary estate equally.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

GRAY J
I consider that the findings made by the Judge of knowledge and approval were open on the evidence. The Judge undertook a close analysis of the evidence and set out in clear terms the basis of his findings. There was no suggestion that the Judge had made any error in approach to the assessment of the evidence. To my mind, not only did the evidence support the Judge’s findings made, but those findings were the correct findings. The evidence of Mr Douglas in particular made out a clear case of knowledge and approval.Conclusion I would dismiss the appeal. VANSTONE J: I agree that the appeal should be dismissed, and with the reasons of Gray J. STANLEY J: I would dismiss the appeal. I agree with the reasons of Gray J.

Ratio Decidendi

Legal Principle Established

Established by: GRAY J

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