Osborne v Osborne - [2000] VSC 95

SUPREME COURT OF VICTORIA
COMMON LAW DIVISION	Not Restricted

No. 4000 of 1996

RAY OSBORNE	Plaintiff
v.
FREDERICK OSBORNE AND OTHERS	Defendants

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JUDGE:	HARPER, J.
WHERE HELD:	MELBOURNE
DATE OF HEARING:	17, 18 and 21 FEBRUARY 2000
DATE OF JUDGMENT:	23 MARCH 2000
CASE MAY BE CITED AS:	OSBORNE v. OSBORNE
MEDIUM NEUTRAL CITATION:	[2000] VSC 95

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CATCHWORDS: Wills – Whether mutual – Whether surviving testator bound not to revoke – Claim by disappointed beneficiary for equitable interest in estate of surviving testator - Birmingham v. Renfrew (1937) 57 CLR 666; In re Oldham [1925] Ch. 75; Gray v. Perpetual Trustee Co. Ltd. [1928] AC 391 applied – In re Dale [1994] Ch. 31 doubted.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr. P. Edmunds	Lou Castellono
For the Defendants	Mr. G. Loewenstein	Rigby Cooke

HIS HONOUR:

Frederick Osborne was born on 2 April 1912. On 24 December 1938, he married Winifred Alice McCulloch. She, having been born on 7 September 1905, was six years and seven months older than her husband. They subsequently had two children: Neil Frederick Osborne, born on 30 January 1942, and Ray Osborne born on 7 May 1944. For some time, the address of the matrimonial home was 3 Riverview Terrace, Bulleen. On 13 July 1976, however, husband and wife became the joint proprietors of property known as Unit 1, 36 Belmont Avenue, Glen Iris. That unit remained the matrimonial home until Winifred's death on 26 July 1985, an event which had the effect at law (but not, the plaintiff submits, in equity) of transforming her widower's joint interest in the unit into sole legal ownership. He, in turn, continued to reside there until he died on 22 May 1996. He had previously remarried (on 28 July 1990, to Daisy Patterson) and thereafter the unit once again became the matrimonial home. Mrs. Daisy Osborne lives there still.

This, according to the plaintiff, her stepson Ray Osborne, is the consequence of a breach by his father of an agreement between his father and mother made on or before 24 March 1985. On that day, both the plaintiff's parents executed wills before the same witnesses. Each will consists of an individual paragraph, four subsequent numbered paragraphs, and an attestation clause. The numbered paragraphs are, as between each will, identical. The introductory paragraphs and the attestation clauses differ only in the name of the testator or testatrix.

The plaintiff alleges that the making of these wills was preceded by discussions in which he was involved. According to the second further amended statement of claim, those discussions took place during March 1985 at the plaintiff's then home and at his parents' unit. During them, his parents (according to particulars given under paragraph 4 of the second further amended statement of claim):

"… said that they would revoke their previous wills which had been made on 10 May 1974 and execute new wills so that they would both leave all their real and personal property…

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 Osborne v Osborne

Details

AGLC: Osborne v Osborne [2000] VSC 95
Case: [2000] VSC 95
Decision Date: 23 March 2000

CaseChat Overview and Summary

In Osborne v Osborne, the parties involved were the testator, the deceased, and his former spouse, who brought the claim. The dispute centred on whether the wills of the two parties were mutual and whether the surviving testator was bound not to revoke his will. The former spouse sought an equitable interest in the estate of the surviving testator, arguing that the mutual wills created a binding obligation not to revoke the wills without the consent of the other party. The case was heard in the Supreme Court of Victoria. The court had to decide whether the mutual wills created a binding obligation not to revoke the wills without the consent of the other party and whether the former spouse had a claim for an equitable interest in the estate of the surviving testator.

The court found that the mutual wills did not create a binding obligation not to revoke the wills without the consent of the other party. The court held that the mutual wills did not contain any express provision that would bind the parties to their terms, and therefore, the surviving testator was free to revoke his will. The court also found that the former spouse did not have a claim for an equitable interest in the estate of the surviving testator. The court held that the former spouse had not provided any consideration for the mutual wills, and therefore, she did not have a claim for an equitable interest in the estate of the surviving testator.

The court applied the principles established in Birmingham v Renfrew, In re Oldham, and Gray v Perpetual Trustee Co. Ltd. The court doubted the applicability of the principles established in In re Dale. The court held that the mutual wills did not create a binding obligation not to revoke the wills without the consent of the other party, and therefore, the former spouse's claim for an equitable interest in the estate of the surviving testator failed. The court dismissed the claim and awarded costs to the surviving testator.

Orders