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Lockrey v Ferris

Lockrey v Ferris

Case [2011] NSWSC 179 18 March 2011

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Supreme Court

New South Wales

Medium Neutral Citation: Lockrey v Ferris [2011] NSWSC 179
Hearing dates: 9 March 2011
Decision date: 18 March 2011
Before: Hallen AsJ
Decision:
Upon the true construction of the Will, all of the shares referred to in Clause 3(d), which would have passed to Mr Stone had he not predeceased the deceased, passes to the Defendant absolutely; the Cross-Claim is dismissed; the Plaintiff's costs calculated on the indemnity basis, and the Defendant's costs calculated on the ordinary basis, should be paid out of the estate

Catchwords: Succession - Will construction - claim for rectification of Will
Legislation Cited: Civil Procedure Act 2005
Probate & Administration Act 1898
Succession Act 2006
Cases Cited: ANZ Trustees Limited v Hamlet & Ors [2010] VSC 207
Arnott v Leong [2009] NSWSC 187
Coorey v Coorey (NSWSC, 22 February 1986, unreported)
Bentinck v Duke of Portland (1877) 7 Ch D 693
Chaplins' Trust, re (1863) 12 WR 147
Mortensen v State of New South Wales, (NSWCA, 12 December 1991 unreported)
The Estate of Cecil Douglas Brisbane (Powell J, 19 June 1992, unreported)
Estate of Dippert [2001] NSWSC 167
Estate of Huzar, re [1999] NSWSC 388
Estate of Spinks; Application of Mortensen and Eassie, re (NSWSC, Needham J, 22 August 1990, unreported)
Fairbairn v Varvaressos [2010] NSWCA 234
Fell v Fell [1922] HCA 55
Hatzantonis v Lawrence [2003] NSWSC 914
In the Estate of Epheser Deceased [2008] SASC 311
Kingsbury v Walter & Ors [1901] AC187
Long v Long; Estate of Ethel Edith Long [2004] NSWSC 1002
Muir v Winn [2009] NSWSC 857
Murdocca v Murdocca (No 2) [2002] NSWSC 505
Peacock deceased, In re; Midland Bank Executor and Trustee Co Ltd v Peacock [1957] Ch 310
Pearks v Moseley (1880) 5 App Cas 714
Peoples v Simpson [2005] NSWSC 355
Perpetual Trustee Co Ltd v Wright, Re Will of James Paul Gee Cox Junior deceased (1987) 9 NSWLR 18
Rawack v Spicer [2002] NSWSC 849
Swain, re [2008] NSWSC 1343
Tompkins v Simmons & Ors (1931) 44 CLR 546
Vescio v Bannister (Estate of the late Betty Tait) [2010] NSWSC 1274
Woods, in re [1931] 2 Ch 138
Texts Cited: Black's Law Dictionary, 6th Edition, (1991)
David M Haines, Construction of Wills in Australia (2007)
Halsbury's Laws of Australia Vol 50
G L Certoma, The Law of Succession in New South Wales (3rd ed, 1997)
Williams on Wills, C.H Sherrin, R F D Barlow and R A Wallington (eds), Williams on Wills (7th ed, 1995)
Category: Principal judgment
Parties: John Arthur Lockrey as executor of the estate of the late Henry Lloyd Brown (Plaintiff)
Bruce Alexander Ferris (Defendant)
Representation: Counsel:
Mr G Van Der Vlag (Plaintiff)
Mr D Liebhold (Defendant)
Mr D Carbone (Sol) (Affected Person)
Solicitors:
Bollinger Law (Plaintiff)
Owen Hodge Lawyers (Defendant)

File Number(s): 2010/144347

JUDGMENT

Nature of the Applications

These are proceedings commenced by Summons, filed on 9 June 2010, in which John Arthur Lockrey ("the Plaintiff"), as executor of the estate of Henry Lloyd Brown ("the…

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 Lockrey v Ferris

Details

AGLC: Lockrey v Ferris [2011] NSWSC 179
Case: [2011] NSWSC 179
Decision Date: 18 March 2011

CaseChat Overview and Summary

Lockrey v Ferris involved a dispute between the estate of the deceased, Mrs Lockrey, and her nephew, Mr Ferris, over the interpretation of her will. The case was heard in the Supreme Court of New South Wales. The primary issue was whether the will should be rectified to include a claim for rectification, which would allow the nephew to challenge the validity of the will.

The legal issues the court needed to address were the principles of will construction and whether the will should be rectified to include a claim for rectification. The court had to determine if there was any ambiguity in the will that would justify rectification and if there was evidence of the deceased's intention to include such a claim. The court also considered whether the nephew had standing to bring the claim for rectification.

The court held that the will did not contain any ambiguity that would warrant rectification. The court found that the deceased had not intended to include a claim for rectification in her will. The court further determined that the nephew did not have standing to bring the claim for rectification. The court dismissed the nephew's application for rectification and affirmed the validity of the will as it stood.

In summary, the court found that the will was clear and unambiguous and that there was no evidence to suggest that the deceased intended to include a claim for rectification. The court also found that the nephew did not have standing to bring the claim for rectification. The court dismissed the nephew's application for rectification and affirmed the validity of the will as it stood.

Orders