Hibbitt v Ziade - [2022] NSWSC 904

Supreme Court

New South Wales

Medium Neutral Citation: Hibbitt v Ziade [2022] NSWSC 904
Hearing dates: 4 July 2022
Date of orders: 4 July 2022
Decision date: 04 July 2022
Jurisdiction: Equity
Before: Parker J
Decision:
See [59]-[60]

Catchwords:
SUCCESSION – will – construction – gift of rest and residue of estate to executor including testator’s house – after payment of funeral and testamentary expenses executor to hold property “to” the plaintiffs “in return for” caring for testator’s two cats – whether gift deferred for cats’ lifetimes and conditional on plaintiffs caring for cats – whether language of will ambiguous – whether extrinsic evidence of deceased’s intentions admissible – held that gift of house to plaintiffs not deferred or conditional

Legislation Cited:
Succession Act 2006, s 32

Cases Cited:
Armstrong v The Children’s Hospital at Westmead [2008] NSWSC 1315
Fairbairn v Varvaressos (2010) 78 NSWLR 577
Watson v Foxman (1995) 49 NSWLR 315

Category: Principal judgment
Parties: Christopher Hibbitt (First Plaintiff/Cross-Defendant)
Larraine Hibbitt (Second Plaintiff/Cross-Defendant)
Richard Ziade (Defendant/Cross-Claimant)
Representation:
Counsel:
V Bedrossian SC (Plaintiffs/Cross-Defendants)
J Armfield (Defendant/Cross-Claimant)
Solicitors:
Norris Somers Maait Lawyers (Plaintiffs Cross-Defendants)
Anthony Ziade & Associates (Defendant/Cross-Claimant)

File Number(s): 2021/259026
Publication restriction: Nil

Judgment – EX TEMPORE

Revised from transcript and annotated; issued 6 July 2022

These proceedings concern the administration of the estate of the late Valerie Anne Thorburn (known as Anne Thorburn), who died in January 2020 at the age of 75 or 76. The testatrix had no close relatives. She had lived in a de facto relationship for twenty years with a de facto partner, Robert Smith but he pre‑deceased her. He died in September 2009.
The deceased’s will was made in September 2019 in which she appointed her friend Richard Ziade as her executor and trustee. He is the defendant in the proceedings.
The deceased, when she died, was living alone with two cats for company. The deceased greatly loved the cats, which had been given to her by Mr Smith. She called them Bonnie and Clyde.
In her will the deceased made a gift of her home to Christopher Brian Hibbitt and his wife Larraine Phyliss Hibbitt. Mrs Hibbitt had been a close friend of the testatrix since they were teenagers. The Hibbitts are the plaintiffs in the proceedings and the major issue concerns the interpretation of the gift.
The provisions of the will fall into three main parts, each corresponding with a different part of the deceased’s estate. First, the deceased left seventeen bequests of $225,000 each to close friends of hers, who included Mr Ziade and the Hibbitts. She also left seventeen bequests of $20,000 each to other friends and relatives. These bequests were roughly equivalent to the money that the deceased held in bank accounts and on deposit.
Secondly, the deceased held sixteen substantial parcels of shares. Of those she gave fourteen parcels to specified charities, one for each charity.
Thirdly, clause 21 of the deceased’s will dealt with the “rest and residue” of her estate. The main remaining…

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 Hibbitt v Ziade

Details

AGLC: Hibbitt v Ziade [2022] NSWSC 904
Case: [2022] NSWSC 904
Decision Date: 04 July 2022

CaseChat Overview and Summary

The case of Hibbitt v Ziade involved a dispute regarding the interpretation of a will. The deceased had left his house and the rest and residue of his estate to his executor, to be held for the plaintiffs during their lifetimes in return for caring for his cats. The plaintiffs, who were the named beneficiaries, sought to enforce the will as written, while the executor and other interested parties argued that the gift of the house to the plaintiffs was conditional upon the plaintiffs caring for the cats for their lifetimes and that the language of the will was ambiguous. The court was required to determine whether the gift of the house to the plaintiffs was conditional or deferred and, if so, whether extrinsic evidence could be admitted to ascertain the deceased’s true intentions.

The court found that the language of the will was not ambiguous and that the gift of the house to the plaintiffs was not conditional or deferred. The court held that the phrase “in return for” did not create a condition precedent to the gift but rather described the plaintiffs' obligation to care for the cats. The court also held that extrinsic evidence could not be admitted to contradict the plain meaning of the will. The court found that the deceased had clearly intended to gift the house to the plaintiffs outright, with no conditions attached.

As a result of the court's decision, the plaintiffs were entitled to immediate possession of the house. The executor was ordered to transfer the title of the house to the plaintiffs. The court's decision clarified the legal principles regarding the construction of wills and the admissibility of extrinsic evidence to ascertain the deceased's true intentions. The court held that the language of the will must be given its plain meaning and that extrinsic evidence cannot be used to contradict the clear terms of the will.

Orders