Meissner v Lindsay - [2016] NSWSC 790

Supreme Court

New South Wales

Case Name:	Meissner v Lindsay
Medium Neutral Citation:	[2016] NSWSC 790
Hearing Date(s):	1-2 March 2016, 27 April 2016
Date of Orders:	20 June 2016
Decision Date:	20 June 2016
Jurisdiction:	Equity
Before:	Robb J
Decision:	(1) Order that the plaintiff’s claims in pars 1 to 4 of the summons be dismissed. (2) Order the plaintiff to pay the defendant’s costs of the proceedings in relation to the claims referred to in order 1. (3) Direct the parties to deliver to the court and serve on each other any submissions they wish to make as to the basis of the costs order made in order 2 within 14 days. (4) Direct the parties to deliver to the court and serve on each other a statement in writing of their position in relation to the further relief claimed by the plaintiff in the summons and by the defendant in the cross claim, and as to the directions that should be made for the further conduct of the proceedings in relation to that relief within 14 days. (5) Direct that the exhibits and any documents produced on subpoena or notice to produce may be returned forthwith.
Catchwords:	SUCCESSION – Wills, probate and administration – the making of a will – probate of will made by deceased on 17 December 2008 granted to defendant – plaintiff sought declaration that deceased had made a later valid will on 10 February 2010 – evidence tendered by plaintiff that the deceased made the later will not accepted – plaintiff’s claim dismissed – no question of principle EVIDENCE – cross-examination of witnesses – whether there was failure by defendant’s counsel to comply with the rule in Browne v Dunn – defendant disclosed attack on plaintiff’s witnesses in written opening – Held plaintiff satisfied the rule
Legislation Cited:	Succession Act 2006 (NSW)
Cases Cited:	Browne v Dunn (1894) 6 R 67
Texts Cited:	JD Heydon; Cross on Evidence (10 ed)
Category:	Principal judgment
Parties:	Ladislaus (Joe) Meissner (plaintiff) Pamela Lindsay (first defendant) Australian Cancer Research (second defendant)
Representation:	Counsel: M Thompson (plaintiff) K Morrissey (first defendant) Solicitors: Gerard Malouf & Partners E Berman & Co (first defendant)
File Number(s):	2013/260130
Publication Restriction:	None

JUDGMENT

1 Ms Sharron Dale Meissner (the deceased) died on 7 August 2013.

The 2008 will

The deceased made a will dated 17 December 2008 (the 2008 will). Relevantly, she appointed the defendant, Ms Pamela Lindsay, as her executor.
Ms Lindsay was granted probate of the 2008 will by the Supreme Court of New South Wales on 31 October 2013.
The operative part of the 2008 will provided as follows:
4. I instruct my Executor to convert the balance of my estate into cash and upon conversion to divide the same as follows:
the sum of one hundred thousand dollars ($100,000) to St Vincents Hospital
the sum of one hundred thousand dollars ($150,000) to Cancer Research Foundation
the sum of twenty thousand dollars ($20,000) to the RSPCA
the sum of…

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 Meissner v Lindsay

Details

AGLC: Meissner v Lindsay [2016] NSWSC 790
Case: [2016] NSWSC 790
Decision Date: 20 June 2016

CaseChat Overview and Summary

In the case of Meissner v Lindsay, the dispute centred around the validity of a will made by the deceased on 17 December 2008. The plaintiff sought a declaration that a later will made on 10 February 2010 was valid. The matter was heard in the Supreme Court of South Australia. The primary issue before the court was whether the plaintiff could successfully argue that the deceased had executed a later will that should be given effect over the earlier one. The court also had to consider whether there was a failure by the defendant's counsel to comply with the rule in Browne v Dunn concerning the disclosure of attacks on witnesses.

The court found that the evidence provided by the plaintiff regarding the later will was not persuasive enough to warrant a declaration of its validity. Consequently, the plaintiff's claim was dismissed. The court concluded that there was no legal principle at stake that necessitated a detailed discussion. Regarding the issue of compliance with the rule in Browne v Dunn, the court determined that the plaintiff had been adequately informed about the defendant's intent to challenge the credibility of the plaintiff's witnesses, fulfilling the requirements of the rule.

The final orders of the court were that the plaintiff's claim for a declaration regarding the later will was dismissed, and there was no breach of the rule in Browne v Dunn by the defendant's counsel.

Orders