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Macey v Finch

Macey v Finch

Case [2002] NSWSC 933 30 September 2002

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CITATION: Macey v Finch; Estate of Donald Munro [2002] NSWSC 933

CURRENT JURISDICTION: Equity Division
Probate List

FILE NUMBER(S): SC 111565/02

HEARING DATE(S): 30/09/02

JUDGMENT DATE: 30 September 2002

PARTIES :

Kenneth Arthur Macey (P)
Mary Finch (D1)
Gary Parker, Graham Parker, Wendy Szanyi, Warren Parker and Suzanne Parker (D2-6)

JUDGMENT OF: Young CJ in Eq

COUNSEL : R W Cameron (P)
J N Glass (S) (D1)
R J Kirby (S) (D2-6)

SOLICITORS: McLaughlin & Riordan (P)
Kemp Strang (D1)
Michael Slattery (D2-6)

CATCHWORDS: SUCCESSION [48]- Informal will- Instructions given to solicitor- Read back and approved- Deceased dies unexpectedly two hours later- Instructions not admitted to probate as a will.

LEGISLATION CITED: Wills Probate and Administration Act 1898, section 18A

CASES CITED: Hatsatouris v Hatsatouris [2001] NSWCA 408
Pahlow-Silady v Siladi (C/A, 22.4.1997)
Permanent Trustee Co Ltd v Milton (1995) 39 NSWLR 330
Public Trustee v NSW Cancer Council [2002] NSWSC 220
Re Hodges (1988) 14 NSWLR 698
Re Kencalo (Powell J, 23.10.1991)
Re Masters (1994) 33 NSWLR 446
Re Polyak [1999] NSWSC 862
Re Sharman [1999] NSWSC 709
Re Springfield (1991) 23 NSWLR 535
Theakston v Marson (1832) 4 Hagg Ecc 290; 162 ER 1452

DECISION: Orders made.

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

YOUNG CJ in EQ

Monday 30 September 2002

111565/02 – MACEY v FINCH; ESTATE OF DONALD MUNRO

JUDGMENT

1 HIS HONOUR: Donald Munro died unexpectedly on 16 August 2001. Earlier that day Mr Munro had attended the office of Mr Roger Schenko, solicitor, of Berala for the purpose of making his will.

2 Mr Munro attended with his nephews, Kenneth Arthur Macey, the present plaintiff, and Larry Raymond Macey, who died on 1 April 2002. The evidence of what happened at Mr Schenko's office is provided by Mr Schenko and the plaintiff in their respective affidavits. They differ slightly. There was no cross-examination and I think that where there is a difference I should prefer the evidence of the independent solicitor, rather than the plaintiff, who has an interest.

3 However, the differences are not that marked. Taking the facts from Mr Schenko's affidavit, he said he asked Mr Munro his full name, address and occupation and then he said: (I will use "RS" for Mr Schenko and "DM" for the testator).

"RS: Who do you want to make the Executors?

DM: These two. (Pointing to Messrs Kenneth and Larry Macey).

RS: Do you want to put in your Will that they will bury you?

DM: Yes.

RS: Do you want them to place a headstone on your grave?

DM: Yes.

RS: What do you want done with the rest?

4 Ken Macey then intervened giving the names of the five nephews named Macey. RS then said:

“If any of these persons die what would you like to do with their share?

DM: I would like to give it to their children.

RS: What happens if Ken or Larry should…

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 Macey v Finch

Details

AGLC: Macey v Finch [2002] NSWSC 933
Case: [2002] NSWSC 933
Decision Date: 30 September 2002

CaseChat Overview and Summary

Macey v Finch involved the executors of the estate of a deceased individual who had provided instructions to a solicitor regarding the distribution of their estate. The dispute arose when the executors attempted to admit these instructions as the deceased's will, only to have their efforts rejected by the court. The court was tasked with determining whether the instructions could be admitted as a valid will under the relevant succession laws.

The legal issue before the court was whether the instructions provided by the deceased to their solicitor constituted a valid informal will. The court had to consider whether the deceased had clearly and unambiguously expressed their intentions for the distribution of their estate, and whether those instructions had been properly executed and approved by the deceased. The court also needed to evaluate the circumstances surrounding the deceased's unexpected death shortly after providing the instructions, which raised questions about the deceased's mental capacity and the finality of their instructions.

The court found that the instructions did not meet the legal requirements for an informal will. Although the deceased had provided clear instructions to their solicitor, these instructions were not read back to the deceased and approved by them in their presence. The court held that this was a crucial step in validating an informal will, and without it, the instructions could not be admitted as a will. Additionally, the court noted that the deceased's unexpected death shortly after providing the instructions did not necessarily invalidate the instructions, but it did highlight the importance of ensuring that the deceased had fully approved and understood the contents of the will. The court ultimately rejected the executors' application to admit the instructions as a will.

The court's decision resulted in the executors being unable to admit the instructions as a valid will, leading to potential complications in the distribution of the deceased's estate. The court's ruling emphasised the importance of following proper legal procedures when creating a will, particularly in the case of informal wills, to ensure that the deceased's wishes are accurately and legally represented.

Orders