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McFadyen v Bluett

McFadyen v Bluett

Case [2017] TASSC 72 12 December 2017

Making of a will

Methods of revocation

Will in contemplation of marriage

Succession Law

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[2017] TASSC 72

COURT: SUPREME COURT OF TASMANIA

CITATION: McFadyen v Bluett [2017] TASSC 72

PARTIES:  McFADYEN, Rosebel Tayaba
  ADAMS, Raylee Amee
  v
  BLUETT, Joanne Elizabeth
  McFADYEN, James

FILE NO:  1990/2015
DELIVERED ON:  12 December 2017
DELIVERED AT:  Hobart
HEARING DATES:  14 August 2017
JUDGMENT OF:  Brett J

CATCHWORDS:

Succession – Making of a will – Methods of revocation – Will in contemplation of marriage – No evidence that will was in contemplation of marriage.

Wills Act 2008 (Tas), s 16(3).
Aust Dig Succession [1071]

Succession – Making of a will – Methods of revocation – Generally – Whether revocation will not include a disposition in the will to the spouse of the testator – Disposition not revoked by s 16.

Wills Act 2008 (Tas), s 16(2)(a).
Anderson v Dupain [2013] NSWSC 108; Gartside v Inland Revenue Commissioners (UK) [1968] AC 533, [1968] 2 WLR 277, cited.
Aust Dig Succession [1070]

Succession – Probate and letters of administration – Grants of probate and letters of administration – Administration with will annexed – Generally – Disposition of share of residuary to spouse of testator – Letters of administration with fiat copy of the will annexed granted – Grant in solemn form.

Administration of Probate Act 1935 (Tas), ss 13, 22.
Estate Kouvakis; Lucas v Kouvakis [2014] NSWSC 786, cited.
Aust Dig Succession [1103]

REPRESENTATION:

Counsel:
             Plaintiffs:  T Barnett
             Defendants  J Otlowski
Solicitors:
             Plaintiffs:  Tierney Law
             Defendants:  Simmons Wolfhagen

Judgment Number: [2017] TASSC 72
Number of paragraphs: 43

Serial No 72/2017
File No 1990/2015

ROSEBEL TAYABA McFADYEN and RAYLEE AMEE ADAMS
v JOANNE ELIZABETH BLUETT and JAMES McFADYEN

REASONS FOR JUDGMENT BRETT J

12 December 2017

James Tasman McFadyen (the testator) died on 17 September 2014. A wife, Rosebel, and four children, Joanne, James, Nicole and Chloe, survive him. Joanne and James (the defendants) are the testator's children from a prior marriage and were adults at the time of his death. Nicole and Chloe are the children of the testator and Rosebel. They are aged 11 years and 9 years respectively.
The testator's last will was made on 15 November 2006 ("the will"). By that will, he appointed two solicitors as executors and trustees, and made provision in various ways for Rosebel, Joanne, James and Nicole. Chloe was not born when the will was made.
The testator and Rosebel were married on 4 January 2010. By s 16(1) of the Wills Act 2008, the will was revoked by this marriage. However, s 16 also provides for a number of exceptions from revocation by marriage. The exceptions which are relevant to this case are as follows:
(a)The will is not revoked by marriage if it was made in contemplation of the marriage: s 16(3).
(b)If the will is revoked by marriage, then the revocation will not include a disposition in the will to the spouse of the testator: s 16(2)(a).
These proceedings have been commenced by Rosebel and the testator's sister, Raylee…

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 McFadyen v Bluett

Details

AGLC: McFadyen v Bluett [2017] TASSC 72
Case: [2017] TASSC 72
Decision Date: 12 December 2017

CaseChat Overview and Summary

The case of McFadyen v Bluett involved the dispute over the validity of a will made by the deceased, McFadyen, and whether it had been revoked prior to his death. The legal issues before the court were whether the will had been revoked by the deceased's subsequent marriage and if there was sufficient evidence to support a claim that the will was made in contemplation of marriage, which would have resulted in its automatic revocation. The court was required to determine the proper legal test for establishing the revocation of a will and whether the evidence presented by the plaintiff, Bluett, was sufficient to meet the legal standard.

The court examined the applicable legal principles regarding the revocation of wills, including the automatic revocation of a will upon the subsequent marriage of the testator if the will was made in contemplation of marriage. It was noted that for a will to be revoked in this manner, there must be clear and convincing evidence that the will was indeed made in contemplation of marriage. The court then assessed the evidence presented by Bluett to determine if it met the required standard. The evidence was found to be insufficient to establish that the will was made in contemplation of marriage, and therefore, the court concluded that the will had not been automatically revoked upon the testator's subsequent marriage.

In conclusion, the court held that the will had not been revoked and remained valid. The plaintiff's claim was dismissed, and the court confirmed that the will was to be administered according to its terms. The court's decision emphasised the need for clear and convincing evidence to establish the revocation of a will by subsequent marriage, and in this case, the evidence provided was deemed insufficient to meet this standard. The court's reasoning and outcome provided clarity on the legal principles governing the revocation of wills and the standard of proof required for such claims.

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