Hammond v Hammond

In the matter of Hammond v Hammond, the respondent, a beneficiary under the will of the deceased, brought an action against the appellant, the executor of the deceased's will, seeking to establish that the executor had distributed money to himself in breach of the orders made in earlier Family Provision Act proceedings between the parties. The appellant brought a cross claim seeking to construe or rectify the phrase "residue of the estate" in the agreed short minutes of order in the earlier proceedings, in order to include a superannuation fund death benefit, which was not an asset in the estate. The court was required to determine whether the executor's cross claim was successful, and whether it would have affected the perfected orders made in the earlier proceedings. Additionally, the court needed to determine whether the rule in Jones v Dunkel operated to require a party to give merely cumulative evidence.

The court held that the executor's cross claim was unsuccessful, as the agreed short minutes of order in the earlier proceedings was clear and unambiguous. The court held that the phrase "residue of the estate" did not include the superannuation fund death benefit, and that the executor's cross claim would not have affected the perfected orders made in the earlier proceedings. The court further held that the rule in Jones v Dunkel did not require a party to give merely cumulative evidence, as the evidence in question was not merely cumulative, but was relevant to the issue of whether the executor had distributed money to himself in breach of the orders made in the earlier proceedings. The court dismissed the executor's cross claim, and held that the respondent was entitled to the relief sought in her originating application.

The final orders of the court were that the executor's cross claim was dismissed, and that the respondent was entitled to the relief sought in her originating application. The court did not make any orders in relation to the rule in Jones v Dunkel, as it was not necessary to do so in order to resolve the issues in the case. The court held that the evidence in question was relevant to the issue of whether the executor had distributed money to himself in breach of the orders made in the earlier proceedings, and that the rule in Jones v Dunkel did not require a party to give merely cumulative evidence.