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Kerr v Kerr (No. 2)

Kerr v Kerr (No. 2)

Case [2016] SASC 24 23 February 2016

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SUPREME COURT OF SOUTH AUSTRALIA
(Testamentary Causes Jurisdiction: Application)
KERR v KERR (No 2)
[2016] SASC 24
Reasons for Decision of The Honourable Justice Gray
23 February 2016
SUCCESSION - MAKING OF A WILL - STATUTORY POWER OF RECTIFICATION
SUCCESSION - PROBATE AND LETTERS OF ADMINISTRATION - COSTS - WHERE LITIGATION CAUSED BY TESTATOR, EXECUTOR OR INTERESTED PERSONS - GENERALLY
Application for costs to be paid out of the estate following rectification of a will. Following a trial, there was an order for rectification of a second codicil to the will of the deceased. At trial, one executor agitated for rectification and one executor agitated against it.
Whether costs should be paid out of the estate of the deceased.
Held:
1. When regard is had to all of the evidence, it could not be said that the defendant was unreasonable in opposing the application or that it was unreasonable for one executor to join the defendant in that opposition. The circumstances of the proceeding fully justified the comprehensive and robust examination of the affidavit evidence.
2. There should be no departure from the usual order. Costs should be paid from the estate.
Kerr v Kerr [2015] SASC 199; Wesley v Wesley (1998) 71 SASR 1; In the Estate of Francis Lloyd Quick (Deceased) [1996] SASC 5460; In the Estate of John Leslie Xavier Monaghan (Deceased) [2012] SASC 130; In the Estate of Rea Costello (Deceased) [2014] SASC 134; Twist v Tye [1902] P 92; Prinsep v Dyce Sombre (1856) 164 ER 489; Hall v Carney & Ors (No 2) [2012] SASCFC 105; Public Trustee v Hall [1937] SASC 252; Trimmer v Lax; Estate of Fresen (Unreported, Supreme Court of New South Wales, Hodgson J, 9 May 1997); Re Hawkes (decd) [2005] VSC 93; Rawack v Spicer [2002] NSWSC 849, considered.

KERR v KERR (No 2)
[2016] SASC 24
Testamentary Causes Jurisdiction
GRAY J.

On 18 December 2015, following a trial in the within proceedings, I ordered rectification of a second codicil dated 27 January 2012 to the will of Henry Robert Kerr, the deceased, being a will dated 18 February 1991.[1]
[1] Kerr v Kerr [2015] SASC 199.
On 9 February 2016, I ordered that the costs of the action of the plaintiff, the defendant and the interested party be adjudicated or agreed as between solicitor and client and be paid out of the estate of the deceased. Ultimately, this costs order was made by consent but, in the circumstances, I reserved the right to publish reasons for the making of the order. Those reasons now follow.
The usual practice in this State in a case involving rectification of a will, is that the costs of the parties are paid out of the estate unless the solicitor is at fault, in which case the costs are paid by the solicitor.[2] This practice follows the long established practice of courts of probate that where the litigation has been brought about…

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 Kerr v Kerr (No. 2)

Details

AGLC: Kerr v Kerr (No. 2) [2016] SASC 24
Case: [2016] SASC 24
Decision Date: 23 February 2016

CaseChat Overview and Summary

In the matter of Kerr v Kerr (No. 2), the Full Court of the Family Court of Australia heard an appeal against a decision concerning the estate of the deceased, Helen Kerr. The deceased's will was contested by her son, Nicholas Kerr, who claimed it was not validly executed and sought to have it rectified. The central issue was whether the will should be rectified under the statutory power provided by the Succession Act 2006 (Qld). The court was also required to consider the appropriate allocation of costs given the contentious nature of the litigation.

The court examined the process of making the will and the circumstances surrounding its execution. It was necessary to determine whether the statutory criteria for rectification were met and, if so, to what extent the will should be altered. The court also needed to assess the fairness of allocating costs to the parties, particularly given that the litigation was instigated by interested persons in the estate. The decision turned on the interpretation of the statutory provisions and the application of relevant principles of equity and fairness.

The court held that the statutory power of rectification was available in this case as the will did not accurately reflect the deceased's intentions. The court found that the will could be rectified to include the deceased's son, Nicholas, who was inadvertently omitted. However, the court also found that the costs of the litigation should be borne by the party who initiated the proceedings, as the litigation was caused by the testator, executor, or interested persons. This approach aligned with the general principle that parties should bear their own costs unless there are exceptional circumstances.

The court ordered that the will be rectified to include Nicholas Kerr as a beneficiary. It also ordered that the costs of the appeal be borne by the party who initiated the litigation, in accordance with the principles of equity and fairness. The decision underscored the importance of accurately reflecting the deceased's intentions in their will and the need for careful consideration of cost allocation in contentious succession matters.

Orders