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Orr v Slender

Orr v Slender

Case [2005] NSWSC 1175 21 November 2005

Admissibility of Evidence

Specific Performance

Ademption

Property Law

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Reported Decision:
64 NSWLR 671

New South Wales

Supreme Court

CITATION:
John Frederick Orr v Renee Slender Estate of the late Godfrey Raymond Orr & Ors [2005] NSWSC 1175

HEARING DATE(S): 25/08/2005

JUDGMENT DATE :

21 November 2005

JURISDICTION:
Equity Division

JUDGMENT OF:
Nicholas J

DECISION:
Refer para 34.

CATCHWORDS:
WILLS - Legacies - Ademption - Property subject of specific legacy sold prior to death of testator - sale in exercise of power of attorney - whether sale resulted in benefit to attorney - whether sale within attorney's authority - whether ademption of legacy - s 163B Conveyancing Act 1919.

LEGISLATION CITED:
Conveyancing Act 1919, s 163B
Power of Attorney Act 2003, s 6(3)

CASES CITED:
Brown v Heffer (1976) 116 CLR 344
Christensen v McKnight (unreported, NSWSC, 2 March 1995)
Commissioner of Stamp Duties (Q) v Livingston (1964) 112 CLR 12
Fairweather v Fairweather (1944) 69 CLR 121
Gilder v Fairweather & Ors (1943) 44 SR (NSW) 229
Jenkins v Jones (1866) LR 2 Eq 323.
Johnston v Maclarn [2002] NSWSC 97
Jones v Green (1868) LR 5 Eq 555
Network Ten Pty Limited v TCN Channel Nine Pty Limited [2004] HCA 14
Re Galway's Will Trusts (1950) 1 CH 1

PARTIES:
John Frederick Orr Plaintiff
Renee Slender First Defendant
Debbie Holland Second Defendant
Susan Holland Third Defendant
Mark Orr Fourth Defendant

FILE NUMBER(S):
SC 5681/2004

COUNSEL:
J. Wilson SC Plaintiff
A. Diethelm 1-3 Defendants

SOLICITORS:
Dibbs Abbott Stillman - Plaintiff
Hargreaves Practice - 1-3 Defendants

LOWER COURT JURISDICTION:

IN THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION

Nicholas J

Monday, 21 November 2005

5681/04 John Frederick Orr v Renee Slender Estate of the late Godfrey Raymond Orr & Ors

JUDGMENT

1 His Honour: These proceedings arise out of a dispute as to the entitlement of the parties to the assets of the estate of the late Godfrey Raymond Orr (the testator) who died on 14 August 2003, leaving a will dated 12 August 1993. Probate of the will was granted to John Frederick Orr (the plaintiff), on 22 September 2003, the sole executor and trustee.

2 The testator’s wife, Alice, died in 1982. He had no children. He had four siblings, Aileen, Audrey, Clifford, and Renee (the first defendant), all of whom except the first defendant predeceased him. The second and third defendants are grandnieces of the testator. The fourth defendant is a grandnephew of the testator and the son of the plaintiff. The plaintiff and the defendants are the only surviving beneficiaries under the will.

3 The relevant history is as follows.

4 At the date he made his will on 12 August 1993, the testator was the owner of the home unit at No. 6/64 Belmore Road, Randwick in which he lived, and held the sum of about $15,000.00 in a bank account. The relevant provisions of the will are:

I GIVE DEVISE AND BEQUEATH

UPON TRUST

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 Orr v Slender

Details

AGLC: John Frederick Orr v Renee Slender Estate of the late Godfrey Raymond Orr [2005] NSWSC 1175
Case: [2005] NSWSC 1175
Decision Date: 21 November 2005

CaseChat Overview and Summary

The case of Orr v Slender involved a dispute concerning the ademption of a specific legacy under the will of a deceased person. The parties to the action were the executor of the estate, the beneficiary of the specific legacy, and the attorney who had sold the property subject to the legacy prior to the testator's death. The dispute centred on whether the sale of the property, which was conducted under the authority of a power of attorney, resulted in a benefit to the attorney and whether the sale was within the attorney's authority. The case was heard in the Supreme Court of New South Wales.

The central legal issues before the court were whether the sale of the property was within the attorney's authority and whether the sale resulted in a benefit to the attorney. The court was also required to determine whether the sale resulted in the ademption of the specific legacy under the will. The court had to consider the provisions of the Conveyancing Act 1919, specifically section 163B, which deals with the effect of a sale by an attorney on legacies under a will.

The court found that the sale was within the attorney's authority and did not result in a benefit to the attorney. The court also found that the sale did not result in the ademption of the specific legacy under the will. The court held that section 163B of the Conveyancing Act 1919 applied and that the sale did not affect the beneficiary's entitlement to the legacy. The court found that the sale did not result in the ademption of the specific legacy because the attorney did not receive any benefit from the sale and the sale was within the attorney's authority.

The court ordered that the beneficiary was entitled to receive the specific legacy as stated in the will. The executor was ordered to pay the legacy to the beneficiary. The court also ordered that the sale of the property by the attorney did not affect the beneficiary's entitlement to the legacy.

Orders