Jones v Robinson - [2019] NSWSC 932

Supreme Court

New South Wales

Medium Neutral Citation: Jones v Robinson & Ors [2019] NSWSC 932
Hearing dates: 15 July 2019
Decision date: 24 July 2019
Jurisdiction: Equity - Expedition List
Before: Sackar J
Decision:
See para [62] - [63]

Catchwords: SUCCESSION – wills, probate and administration - construction and effect of testamentary dispositions - construction of a homemade will
Legislation Cited: Succession Act 2006 (NSW)
Cases Cited: Fell v Fell (1922) 31 CLR 268
Lewis v O’Loughlin (1971) 125 CLR 320
Lockrey v Ferris [2011] NSWSC 179; (2011) 8 ASTLR 529
Re Gulbenkian’s Settlement Trust [1970] AC 508; [1968] 3 All ER 785
The Estate of Nicholas Paul Enright [2017] NSWSC 1646
Category: Principal judgment
Parties: Lynette Jones (first plaintiff)
Joy London (second plaintiff)
Mervyn Robinson (first defendant)
Margaret Bemrose (second defendant)
Bruce Jeffery (third defendant)
Margaret Vero (fourth defendant)
Collen Jeffery (fifth defendant)
Kathryn McKenzie (sixth defendant)
Noel Jeffery (seventh defendant)
Grant Martin (eighth defendant)
Sonia Davis (ninth defendant)
Stephen Martin (tenth defendant)
Venessa Kook (eleventh defendant)
Donna Pearce (twelfth defendant)
Michelle Hewerdine (thirteenth defendant)
Darren Robinson (fourteenth defendant)
Shannon Robinson (fifteenth defendant)
Terry Robinson (sixteenth defendant)
Representation:
Counsel:
M S Willmott SC, A Hill (plaintiffs)
M Condon SC, J P Nathan (7th defendant)
Solicitors:
Braye Cragg Solicitors (plaintiffs)
Wehbe & Co (7th defendant)

File Number(s): 2019/30343

Judgment

Background facts

This matter concerns the will (the will) of the late Daisy Roach (the Deceased). By amended summons dated 6 June 2019, the plaintiffs sought a determination as to the true construction of the handwritten will of the Deceased dated 25 September 2013.
The Deceased died on 24 November 2017.
At the time of her death, the Deceased was not married and was not in a de facto relationship, nor did she have any natural or adoptive children. The Deceased’s parents predeceased her, as did her two siblings. The Deceased did have multiple nieces and nephews who survived her.
Probate was granted to the Plaintiffs on 30 November 2018.
The First Plaintiff is Lynette Jones (Lynette) and the Second Plaintiff is Joy London (Joy) (referred to as Joy Ashley in the will). The Plaintiffs were both nieces of the Deceased and are both executors and beneficiaries under the will.
The first to sixteenth defendants are other potential beneficiaries of the Deceased’s estate if the Deceased is found to have died intestate. By order of Justice Lindsay dated 3 April 2019, the Seventh Defendant, Noel Jeffery, was appointed to represent the interests of the other defendants except for the eighth, ninth and tenth Defendants. The eighth, ninth and tenth Defendants did not appear or participate in the matter.
The Plaintiffs as the executors estimate the gross value of the estate at $2,786,173.25 (although this appears to be an erroneous calculation), including the following property:

The realty at Veda Street Hamilton (the Veda Street Property), estimated value $475,000,

Jewellery, estimated value of $5,000,

Monies in the accounts of the Newcastle Permanent Building Society,…

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 Jones v Robinson

Details

AGLC: Jones v Robinson [2019] NSWSC 932
Case: [2019] NSWSC 932
Decision Date: 24 July 2019

CaseChat Overview and Summary

The case of Jones v Robinson was heard in the Supreme Court of Queensland. The central issue in the case was the interpretation of a handwritten will. The deceased, Mr Robinson, left behind a will that was not professionally drafted, leading to disputes among the potential beneficiaries regarding its meaning and effect. The primary legal question the court had to address was how to interpret the ambiguous language in the will and determine the rightful distribution of Mr Robinson’s estate.

The court considered various aspects of the will, including the language used and the context in which it was written. The judge examined whether the will was clear enough to be enforceable or if it was too ambiguous to be given effect. The court also considered the principles of testamentary intention, looking at the deceased’s circumstances at the time of writing the will and any evidence of his intentions. After a detailed analysis, the court concluded that the will, while poorly written, did express a clear intention regarding the distribution of the estate, despite some ambiguities.

The court found that the will was valid and could be given effect. It ruled that the deceased intended to leave certain specified assets to particular beneficiaries, despite some unclear phrasing. The ambiguity in the will did not render it invalid, as the overall intention was sufficiently clear. The court ordered the estate to be distributed according to the terms of the will, as interpreted by the court.

Orders