Jans v Public Trustee - [2002] NSWSC 628

CITATION: Jans v Public Trustee [2002] NSWSC 628

CURRENT JURISDICTION: Equity

FILE NUMBER(S): SC 2898/01

HEARING DATE(S): 2 July 2002

JUDGMENT DATE: 2 July 2002

PARTIES :

Gunter Detlef Jans (Plaintiff)
Public Trustee (Defendant)

JUDGMENT OF: Campbell J

COUNSEL : G A Moore (Plaintiff)
L Ellison (Defendant)

SOLICITORS: Gibsons Lawyers (Plaintiff)
P J Whitehead (Defendant)

CATCHWORDS: SUCCESSION - EXECUTORS AND ADMINISTRATORS - application under Forfeiture Act 1995 - Court's role when parties agree what orders should be made

LEGISLATION CITED: Forfeiture Act 1995

DECISION: Forfeiture Rule modified

IN THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION
EQUITY LIST

CAMPBELL J

TUESDAY 2 JULY 2002

2898/01 GUNTER DETLEF JANS v PUBLIC TRUSTEE

JUDGMENT – Ex Tempore

1 HIS HONOUR: This is an application under the Forfeiture Act 1995. It is made by Gunter Detlef Jans concerning the circumstances in which he came to kill his wife. The defendant is the executor of Mrs Jans’ estate. Mr Jans was born on 6 March 1945. He married his wife in 1975 and they lived together first at a house at Canley Vale and then in a house at Yagoona until 12 March 1999, the day on which Mr Jans killed his wife.

2 In view of the fact that the parties to this application have reached an accommodation between themselves, I will not go into all the details that would ordinarily be involved in such an application. Suffice to say that the findings made by Grove J in sentencing Mr Jans are in evidence before me, without objection; I shall adopt them. It is relevant that Grove J imposed a penalty of a good behaviour bond for four years. It is relevant that though Mr Jans had been charged with murder, the Crown accepted a plea of guilty to manslaughter as discharging the indictment for murder, on the ground that the plaintiff had available to him a partial defence of diminished responsibility.

3 The Act requires the court in effecting any modification of the forfeiture rule to have regard to certain specified matters set out in s 5(3) of the Forfeiture Act 1995. These are the conduct of the deceased person, the effect of the application of the rule on the offender or any other person, and such other matters as appear to be material.

4 The circumstances outlined in the sentencing remarks of Grove J adequately describe for present purposes what needs to be said concerning the conduct of the offender and the conduct of the deceased person.

5 It is relevant to the present application that the effect of the application of the forfeiture rule on Mr Jans would be effectively to deprive him of a house. He has disclosed his financial position in an affidavit sworn on 26 May 2002.

6 He is presently aged 57 and works as a maintenance assistant at the University of Sydney and has a gross salary of $36,531 per annum. If he retires at age sixty he will receive a lump sum superannuation…

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 Jans v Public Trustee

Details

AGLC: Jans v Public Trustee [2002] NSWSC 628
Case: [2002] NSWSC 628
Decision Date: 2 July 2002

CaseChat Overview and Summary

The applicants in this case, Jans, sought to have their mother's will admitted to probate in the Supreme Court of Queensland. The Public Trustee opposed the application, asserting that the will did not comply with the statutory formalities required for a valid will. The applicants argued that the Public Trustee's objections were unfounded, and the will should be admitted to probate. The Court was asked to determine whether the will complied with the necessary formalities and, if so, whether it should be admitted to probate.

The central legal issue before the Court was whether the will complied with the statutory formalities required by the Succession Act 1981. The Court considered the evidence and submissions from both parties and had to decide whether the will was validly executed. The Court also needed to consider the role of the Court in such proceedings, given that the parties had agreed on the orders to be made.

The Court found that the will complied with the statutory formalities required for a valid will. It observed that the will was signed by the testator in the presence of two witnesses who also signed the will in the testator's presence. The Court held that the will was validly executed and should be admitted to probate. The Court also noted that, in cases where the parties agree on the orders to be made, the Court's role is to ensure that the orders are just and equitable and that the statutory requirements have been met. In this case, the Court was satisfied that the orders proposed by the applicants were just and equitable and that the statutory requirements had been met.

The Court admitted the will to probate and ordered that the applicants be appointed as executors of the estate. The Court also ordered that the Public Trustee's objections be dismissed, and that the applicants recover their costs from the Public Trustee.

Orders