Miller v Jones

[1999] NSWCA 467

CITATION:	Miller v Jones [1999] NSWCA 467
FILE NUMBER(S):	CA 40645/96
HEARING DATE(S):	02/12/99
JUDGMENT DATE:	17 December 1999
PARTIES :	Damon Charles Miller Charles Harold Miller Jeanette Marilyn Jones Eva Emma May Jones
JUDGMENT OF:	Meagher JA at 1; Beazley JA at 2; Fitzgerald JA at 36

LOWER COURT JURISDICTION:	Supreme Court
LOWER COURT FILE NUMBER(S) :	116913/95
LOWER COURT JUDICIAL OFFICER:	Brownie J

COUNSEL:	Appellant: C A Vindin Respondent: M S Willmot
SOLICITORS:	Appellant: Carroll & Knudsen Respondent: Packer & Austin
CATCHWORDS:	Will; Document purporting to be Will; Admission of fresh evidence; Undue influence
ACTS CITED:	Wills Probate and Administration Act 1898 (NSW)
CASES CITED:	Nock v Austin (1918) 25 CLR 519 Hall v Hall (1868) LR 1 P & D 481
DECISION:	Appeal dismissed with costs

THE SUPREME COURT

OF NEW SOUTH WALES

COURT OF APPEAL

CA 40645/96
PD 116913/95

MEAGHER JA
BEAZLEY JA
FITZGERALD JA

Friday, 17 December 1999


CHARLES HAROLD MILLER & ANOR v JEANETTE MARILYN JONES & ANOR





FACTS

A dispute arose between the executors/beneficiaries appointed or named under a Will dated 3 June 1994 and those under a document dated 1 July 1994. The trial judge found that the latter document was a forgery, the propounders of which have appealed and seek to have it recognised as an informal Will under the Wills, Probate and Administration Act 1898 (NSW).

The appellants also sought leave to adduce fresh evidence as a ground for a new trial. The appellants’ witness appeared before the Court and was cross-examined.

The appellants further sought to set aside the Will dated 3 June 1994 on the ground of undue influence.

HELD

per Beazley JA (Meagher JA and Fitzgerald JA agreeing)

(i) There were numerous inconsistencies in the witnesses evidence and it was not believable. As such, it would not change the result of a trial and the Court should not admit the evidence.

(ii) For a finding of undue influence to be made the court must be satisfied that the Will was the result of the overbearing of the testator’s will. Steps were taken to ensure the instruction came from the testator. The respondents discharged the onus they bore to show the instruction came from the testator and the Will dated 3 June was the free exercise of the testator’s benefaction.

per Fitzgerald JA

(i) There was no basis for any suggestion of error by the trial judge in his Honour’s rejection of the appellant’s assertion that the Will dated 3 June 1994 was procured under undue influence.

ORDERS

Appeal dismissed with costs

THE SUPREME COURT

OF NEW SOUTH WALES

COURT OF APPEAL

CA 40645/96
PD 116913/95

MEAGHER JA
BEAZLEY JA
FITZGERALD JA

Friday, 17 December 1999


CHARLES HAROLD MILLER & ANOR v JEANETTE MARILYN JONES & ANOR

JUDGMENT

1    MEAGHER JA: I agree with Beazley JA.

2    BEAZLEY JA: This case involved a dispute between the executors/beneficiaries appointed or named under a Will of the deceased dated 3 June 1994 and those under a document dated 1 July…