Miskelly v Arnheim - [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…

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 Miskelly v Arnheim

Details

AGLC: Miskelly v Arnheim [2008] NSWSC 1075
Case: [2008] NSWSC 1075
Decision Date: 23 September 2008

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