Hillman v Box (No 4)

Case [2014] ACTSC 107


NOELLE ELIZABETH HILLMAN v LYNDA BOX, DEBRAH BOX AND SKYE BOX

AS EXECUTORS OF THE ESTATE OF GRAEME WILLIAM BOX (NO 4)

[2014] ACTSC 107 (28 May 2014)

CONVEYANCING – LAND TITLES UNDER THE TORRENS SYSTEM – Joint Tenancy and Tenancy in Common – Whether signed Deed and Transfer severs joint tenancy – Title transfer not completed before death of deceased – Principle of severance of joint

tenancy – Joint tenancy severed in equity

DEEDS – What Amounts to a Deed – Whether document in question Agreement or Deed – No extrinsic evidence of intention of parties – Construction of document required –

Document in question is a Deed

DEEDS – Claim Deed should be set aside on the ground of non est factum – Alternative claim that Deed should be set aside due to undue influence exerted on the Applicant – Applicant not prevented from seeking independent legal advice – Applicant freely signed Deed – Applicant capable of understanding the Deed – No undue influence exerted on the Applicant – Claim dismissed

SUCCESSION – FAMILY PROVISION AND MAINTENANCE – Applicant former domestic partner of deceased – Whether domestic partnership had ended at the time of the death of the deceased – Whether Applicant cared for the deceased during last illness –

Applicant not adequately provided for

SUCCESSION – WILLS, PROBATE AND ADMINISTRATION – Claim for chattels alleged to be jointly owned with the deceased – Chattels divided under Deed – Claim

dismissed

SUCCESSION – WILLS, PROBATE AND ADMINISTRATION – Claim that half the proceeds of a property sale held on constructive trust for the Applicant – Title in name of deceased only – Property purchased with funds of deceased – No significant financial contribution by the Applicant – No constructive trust exists

Domestic Relationships Act 1994 (ACT), s 3
Family Provisions Act 1969 (ACT), ss 7, 8
Family Provision (Amendment) Act 1996 (ACT), s 8
Land Title Act 1925 (ACT), s 58

Legislation Act 2001 (ACT), s 169

Rules of the Supreme Court 1965 (UK), Order 62 Rule 28

Laws of Australia, [35.8.420]

400 George Street (Qld) Pty Ltd v B G International Ltd [2012] 2 Qd R 302
Abela v Public Trustee [1983] 1 NSWLR 308
Allcard v Skinner (1887) 36 Ch D 145
ANZ Banking Group Ltd v Alirezai [2004] QCA 6
Bank of New South Wales v Rogers (1941) 65 CLR 42
Barbaro v The Queen (2014) 305 ALR 323
Barrett v Hartley (1866) LR 2 Eq 789
Baumgartner v Baumgartner (1987) 164 CLR 137
Blore v Lang (1960) 104 CLR 124
Burgess v Rawnsley [1975] Ch 429
Burton v Camden London Borough Council [2000] 2 AC 399
Calabrese v Miuccio [1984] 1 Qd R 430
Calabrese v Miuccio (No 2) [1985] 1 Qd R 17
Chapman v Yang [2005] ASCTCA 37
Churton v Christian (1988) 13 NSWLR 241
Coldunell Ltd v Gallon [1986] 1 All ER 429
Corin v Patton (1989) 169 CLR 540
De Dominicus v Spano (1998) 9 BPR 16,279
Delaney…

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AGLC
Hillman v Box (No 4) [2014] ACTSC 107
Case
[2014] ACTSC 107
Decision Date

CaseChat Overview and Summary

In this matter, the Applicant, a former domestic partner of the deceased, sought various orders relating to the deceased's estate. The Applicant claimed that she had not been adequately provided for by the deceased's will and sought an order under the Family Provision and Maintenance Act. The Applicant also sought orders that the deceased's joint tenancy in a property be severed in equity, that a Deed should be set aside on the basis of non est factum or undue influence, and that certain chattels and half the proceeds of a property sale be held on constructive trust for her. The case was heard by the Supreme Court of New South Wales.

The court was required to determine several key legal issues. Firstly, whether the signed Deed severed the joint tenancy between the deceased and the Applicant. Secondly, whether the Deed should be set aside on the grounds of non est factum or undue influence. Thirdly, whether the Applicant had been adequately provided for under the deceased's will, and if not, whether she was entitled to an order under the Family Provision and Maintenance Act. Fourthly, whether the Applicant was entitled to a share of the chattels and half the proceeds of the property sale.

The court held that the signed Deed did sever the joint tenancy in equity, as the Deed was valid and properly executed. The Applicant had freely signed the Deed and was capable of understanding it, and had not been prevented from seeking independent legal advice. The court also found that the Applicant had not been adequately provided for by the deceased's will, and accordingly made an order under the Family Provision and Maintenance Act. However, the court dismissed the Applicant's claim for chattels and for half the proceeds of the property sale, as the Applicant had not made a significant financial contribution to the purchase of the property and there was no constructive trust in her favour.

The court ordered that the Applicant be paid a lump sum from the deceased's estate under the Family Provision and Maintenance Act. No other orders were made in favour of the Applicant.

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

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Ratio Decidendi

Legal Principle Established

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