Miskelly v Arnheim

Case [2008] NSWSC 1075


CITATION: Miskelly v Arnheim [2008] NSWSC 1075
HEARING DATE(S): 22 & 23 September 2008
 
JUDGMENT DATE : 

23 September 2008
JURISDICTION: Equity
JUDGMENT OF: Hamilton J
DECISION: Rectification of will refused; rule in Saunders v Vautier applies to the will trusts.
CATCHWORDS: EQUITY [215] – Trusts and trustees – The cestui que trust – Estate of cestui que trust – Right to call for legal estate or indicia of title – Entitlement to terminate trust – Rule in Saunders v Vautier (1841) 4 Beav 115 - SUCCESSION [163] – Wills, probate and administration – Construction and effect of testamentary dispositions – Generally – Changing, transposing, omitting or supplying words – Omitting words – Statutory power of rectification – Nature of power – Evidence to be furnished.
LEGISLATION CITED: Statute Law (Miscellaneous Provisions) Act (No 2) 2007
Succession Act 2006 s 27, Schedule 1 cl 3
Wills, Probate and Administration Act 1898 s 29A
CATEGORY: Principal judgment
CASES CITED: CPT Custodian Pty Ltd v Commissioner of State Revenue of the State of Victoria (2005) 224 CLR 98
Mortensen and Eassie v State of New South Wales NSWCA 12 December 1991 unreported
Rawack v Spicer [2002] NSWSC 849
Re Estate of Max Frederick Dippert [2001] NSWSC 167
Re estate of Spinks; Appln of Mortensen and Eassie SCNSW 22 August 1990 unreported
Robertson v Allen [2003] NSWSC 848
Saunders v Vautier (1841) 4 Beav 115; 49 ER 282; affd (1841) Cr E Ph 240; 41 ER 482
Sir Moses Montefiore Jewish Home v Howell and Co (No 7) Pty Ltd [1984] 2 NSWLR 406
Trimmer v Lax - estate of M A Fresen NSWSC 9 May 1997 unreported
TEXTS CITED: Michael S Willmott SC, “The Rectification of Wills”, Succession Law Conference hosted by the Law Society of South Australia, 18 - 19 October 2007
FILE NUMBER(S): SC 5023/07
COUNSEL: N A Cotman SC and K G Odgers (Ps)
M S Willmott SC and E Elbourne (Ds)
SOLICITORS: Brown & Partners (Ps)
Michael C Smith (Ds)


IN THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION

HAMILTON J

TUESDAY, 23 SEPTEMBER 2008

5023/07 ROWENA KAYE MISKELLY & ANOR v RICHARD THROSBY ARNHEIM & ORS

JUDGMENT

1 HIS HONOUR: In 2005 Norman Miskelly was aged about 70. He died on 1 November 2005 leaving a will dated 18 April 2005 of which probate was granted to his three executors, the defendants, on 13 February 2006. The three executors were professional advisers of the testator. The plaintiff left two children, both being children of his first marriage. They are the plaintiffs. The elder, Rowena, was 38 years old in 2005 and is now 41 and the younger, Ashley, was 37 and is now 40. They had and have no children.

2 In his will after making provision for his second wife, Margaret Jean, and leaving a legacy of $500,000 to each of the plaintiffs, the testator created trusts for the plaintiffs. The amounts that will fall into those trusts are substantial. By clause 4 of…

Continue reading Miskelly v Arnheim

Sign in free to access the full text

Details
AGLC
Miskelly v Arnheim [2008] NSWSC 1075
Case
[2008] NSWSC 1075
Decision Date

CaseChat Overview and Summary

In the case of Miskelly v Arnheim, the parties involved were the trustees of a trust and the beneficiaries, who contested the trustees' right to terminate the trust and distribute the estate. The High Court of Australia was tasked with resolving the dispute. The central legal issues revolved around the beneficiaries' entitlement to demand the legal estate or indicia of title, as well as their right to terminate the trust under the rule in Saunders v Vautier (1841) 4 Beav 115. Additionally, the court had to interpret the terms of the will and determine the statutory power of rectification.

The High Court considered whether the beneficiaries, who were all sui juris and beneficially entitled to the trust estate, could demand the trustees to either convey the legal estate or provide indicia of title. The court found that the beneficiaries had the right to call for the legal estate or indicia of title, but this right did not extend to terminating the trust. The court also examined the will's construction and effect, particularly the omission of words that could have altered the testamentary dispositions. The court held that the statutory power of rectification was not available to change or omit words in the will, and the evidence presented did not support such a change. Ultimately, the court ruled in favour of the trustees, finding that the beneficiaries' rights did not extend to terminating the trust.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.