Hamilton v Nelson - [2012] SASC 219

SUPREME COURT OF SOUTH AUSTRALIA
(Testamentary Causes Jurisdiction)
In the Estate of VALMAI JEWEL ROCHE (DECEASED)
HAMILTON & ANOR v NELSON & ORS
[2012] SASC 219
Judgment of The Honourable Justice Gray
7 December 2012
SUCCESSION - CONSTRUCTION AND EFFECT OF TESTAMENTARY DISPOSITIONS - CONSTRUCTION GENERALLY - PRINCIPLES OR RULES OF CONSTRUCTION - CHANGING, TRANSPOSING, OMITTING OR SUPPLYING WORDS - OMITTING WORDS
SUCCESSION - PROBATE AND LETTERS OF ADMINISTRATION - JURISDICTION AND DISCRETION OF COURT - SOUTH AUSTRALIA
The deceased executed a last will and testament on 22 October 1981 - order sought by the plaintiffs propounding against the last will and testament - the plaintiffs alleged that at the time of the making of her last will, the deceased was delusional and sought an order that the will and codicil were invalid and that, as no other revoked or current will could be found, the estate of the deceased should be administered on the basis of an intestacy - prior to the proceedings coming on for trial, the parties entered into a deed of settlement and it was subsequently varied - the parties tendered to the Court minutes of order to give effect to the terms of the parties’ deed of settlement as varied - an order was sought by the plaintiffs to the effect that words be omitted from clause 3 of the will on the basis that they are offensive and libellous - whether the deceased had testamentary capacity - whether the words should be removed from clause 3 - whether to make the deed of settlement as varied a rule of court.
Held: Grant of administration with the will and codicil annexed made in favour of the plaintiffs and Shauna Roche - the deceased had testamentary capacity at the time of making her last will - the impugned words in clause 3 of the will were not excised from the will - the deed of settlement was not made a rule of court.
Administration and Probate Act 1919 (SA) s 5; Probate Rules 2004 (SA) r 31, r 32, r 66 and r 72.01, referred to.
Re Crooks (Estate); Akerman v Brown (Unreported, Supreme Court of New South Wales, Young J, 14 December 1994) 29; Public Trustee v Cawthorne & Ors (1993-1994) 175 LSJS 90; D’orta-Ekenaike v Victoria Legal Aid (2005) 223 CLR 1; Rasheed v Rasheed (1999) 73 SASR 346; In the Estate of Enjakovic Deceased (2008) 100 SASR 486, 492; In the Estate of Hall (dec’d) [1943] 2 All ER 159; Re Maxwell (1929) 140 LT 471; In Estate of Ward (2006) 244 LSJS 326; In the Estate of Brummitt (Deceased) [2011] SASC 116; Re Estate of Adler (1999) 155 LSJS 53; Re N [1950] ALR 189; In the Estate of Hawke (1973) 6 SASR 278; Re Estate of L (deceased) (1996) 185 LSJS 406; In the Goods of Bowker [1932] P 93; In the Will of O'Reilly [1927] VLR 533; In the Estate of White [1914] P 153,…

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 Hamilton v Nelson

Details

AGLC: Hamilton v Nelson [2012] SASC 219
Case: [2012] SASC 219
Decision Date: 7 December 2012

CaseChat Overview and Summary

The case of Hamilton v Nelson involved the interpretation of a last will and testament executed by the deceased on 22 October 1981. The plaintiffs sought an order to propound the last will and testament, alleging that the deceased lacked testamentary capacity at the time of making the will, and consequently, the will should be declared invalid. The plaintiffs argued that, as no other valid will could be found, the estate should be administered on the basis of an intestacy. Prior to the trial, the parties entered into a deed of settlement, which was subsequently varied. The plaintiffs also sought an order to omit certain words from clause 3 of the will, claiming that they were offensive and libellous.

The court had to decide whether the deceased had testamentary capacity at the time of making her last will, whether the offensive words in clause 3 should be removed, and whether the deed of settlement, as varied, should be made a rule of court. The court concluded that the deceased had testamentary capacity at the time of making her last will, and the offensive words in clause 3 were not excised from the will. The court also declined to make the deed of settlement as varied a rule of court.

In reaching its decision, the court considered that the removal of the words in question would have no impact on the agreed division of the estate. The court further noted that the proceedings had already received public attention and that it was not appropriate to exercise its discretion to exclude the impugned words from the deceased’s will. The court granted administration with the will and codicil annexed in favour of the plaintiffs and Shauna Roche, directing the plaintiffs to prepare and submit minutes of order in accordance with the reasons provided.

The court’s decision was a balanced approach, taking into account the deceased’s testamentary capacity, the impact of the offensive words on the agreed division of the estate, and the public attention the proceedings had already received. The court's final orders granted administration with the will and codicil annexed in favour of the plaintiffs and Shauna Roche.

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

GRAY J

These proceedings have already received public attention. The removal of the words will have no relevant impact to the agreed division of the estate. In all the circumstances, I do not consider it appropriate to exercise my discretion to exclude the impugned words from the deceased’s will. Conclusion Having regard to the foregoing, I am prepared to make a grant of administration with the will and codicil annexed in favour of the plaintiffs and Shauna Roche. I direct that the plaintiffs prepare and submit minutes of order in accordance with these reasons.

Ratio Decidendi

Legal Principle Established

Established by: GRAY J

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