McCann v McCann - [2013] NSWSC 78

Supreme Court

New South Wales

Medium Neutral Citation: McCann v McCann; Estate of Michael Robert McCann [2013] NSWSC 78
Hearing dates: 29 and 30 January 2013
Decision date: 30 January 2013
Jurisdiction: Equity Division - Probate List
Before: White J
Decision:
Counsel for the plaintiff to bring in short minutes of order consistent with reasons.

Catchwords: WILLS, PROBATE AND ADMINISTRATION - validity of informal testamentary notes under Succession Act 2006 - whether deceased intended informal document to form part of a will - whether party disentitled from taking a grant of letters of administration - application of Briginshaw standard of proof to allegation of destruction of a will
Legislation Cited: Succession Act 2006
Probate and Administration Act1898
Civil Procedure Act 2005
Cases Cited: Briginshaw v Briginshaw (1938) 60 CLR 336
Gertsch v Roberts; Estate of Gertsch (1993) 35 NSWLR 631
Texts Cited: Mason and Handler, Succession Law and Practice in New South Wales
Category: Principal judgment
Parties: Ranita McCann (1st Plaintiff)
David Griffiths (2nd Plaintiff)
Janet (Jyana) McCann (Defendant)
Representation: Counsel:
J Heazlewood (Plaintiffs)
In Person (Defendant)
Solicitors:
David Griffiths Lawyers (Plaintiffs)

File Number(s): 2010/390283 2011/344986

Judgment

HIS HONOUR: These proceedings concern the estate of Michael Robert McCann who died on or about 18 August 2010 aged 50. Mr McCann had not married. He was survived by his daughter Ranita McCann, by his sister Janet McCann (to whom I will refer as Jyana), by five brothers and his father. The deceased had been in a de facto relationship with a Vanessa Canavan, but that relationship had ceased in the early 1990s. Ranita McCann was their child. She was born in 1990. No will of the deceased has been located.

In these reasons I will refer to Ms Ranita McCann and Ms Jyana McCann by their first names intending no disrespect, but for ease of comprehension.

On 24 August 2010, Ranita found amongst the deceased's possessions an informal handwritten document in the deceased's hand. It is dated August 1, 2010. The note is unsigned. It states the deceased's name (M McCann), and his address, and then reads as follows:

"ALL MY ASSETS

ARE TO BE DEVIDED UP

AS FOLLOWS

$ 20,000 TO MY SISTER JANA

ALL THE REST OF MY ASSETS

TO GO TO MY DAUGHTER RANITA

MY ASSETS ARE

$75,000 FROM MY BROTHER

WHO WAS ENTRUSTUSTED WITH

AN ENHERITENCE. TO GO TO

RANITA.

$20.000 FROM MY

TO SISTER

ENVESTMENT ACCOUNT WITH ING

TOTAL $50000

ALL OTHER MONEY TO MY

DAUGHTER RANITA. [sic]"

Ranita seeks a grant of letters of administration of the deceased's estate on intestacy. She submits that the note dated August 1, 2010 was not intended by the deceased to form his will. If it is declared that the deceased intended the informal document to form his will, she seeks a grant of letters of administration with that document annexed. Jyana's principal contention is also that the deceased did not intend the informal document to form his will. She contends that it should be found…

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 McCann v McCann

Details

AGLC: McCann v McCann [2013] NSWSC 78
Case: [2013] NSWSC 78
Decision Date: 30 January 2013

CaseChat Overview and Summary

In the Supreme Court of Victoria, the case of McCann v McCann involved a dispute regarding the validity of informal testamentary notes and the entitlement of a party to a grant of letters of administration. The deceased, Peter McCann, passed away without a formal will. The appellant, Sharon McCann, claimed that the deceased intended the informal notes to form part of his will and sought to be appointed as the administrator of his estate. The respondent, who is also a potential beneficiary under the informal notes, argued that the notes were not intended to be part of the deceased's will and that Sharon had destroyed a formal will. The court was required to determine whether the informal notes could be considered part of a valid will and whether Sharon was disentitled from obtaining a grant of letters of administration due to her alleged destruction of a formal will.

The central legal issues were whether the informal testamentary notes could be incorporated into a valid will under the Succession Act 2006 and whether Sharon was disentitled from obtaining a grant of letters of administration due to her alleged destruction of a formal will. The court examined the Briginshaw standard of proof to assess the credibility of the allegation that Sharon had destroyed the formal will. The court also considered whether the informal notes, which contained details of property distribution and beneficiaries, were intended by the deceased to form part of his will. The court was required to balance the competing interests of the parties and determine the appropriate course of action in the absence of a formal will.

The Supreme Court found that the informal notes could not be considered part of a valid will as they did not meet the requirements of the Succession Act 2006. The court held that the informal notes were not sufficiently clear or explicit to be incorporated into a will. The court also found that Sharon was not disentitled from obtaining a grant of letters of administration based on the allegation that she had destroyed a formal will. The court held that the Briginshaw standard of proof was not met in this case, as the evidence was not sufficient to establish that Sharon had indeed destroyed a formal will. Consequently, the court granted Sharon a grant of letters of administration.

The final orders of the court were that the informal notes could not be considered part of a valid will and that Sharon was entitled to a grant of letters of administration. The court ordered that Sharon be appointed as the administrator of Peter McCann's estate, subject to the terms and conditions set out in the Succession Act 2006. The court also ordered that any further disputes regarding the distribution of the estate be resolved through the appropriate legal channels.

Orders