Osborne v Stewart - [2020] NSWSC 507

Supreme Court

New South Wales

Medium Neutral Citation: The Estate of Terence Byrne; Osborne v Stewart [2020] NSWSC 507
Hearing dates: In Chambers and on the papers
Date of orders: 08 May 2020
Decision date: 08 May 2020
Jurisdiction: Equity
Before: Hallen J
Decision:
The Court:

1. Orders that the Will dated 4 September 2015 of Terence Michael Byrne (the deceased) be rectified by including after “insurances thereon” in Clause 3 thereof the words:

“…and after the death of the said MARCIA ROBIN OSBORNE, to my children and if more than one in equal shares as tenants in common, for their own use and benefit absolutely provided that they survive me for a period of Thirty (30) days and IN THE EVENT that any of them fail to survive me and attain a vested interest but leaving children THEN I DIRECT that such children shall take the share his her or their parent would have taken upon their attaining the age of eighteen (18) years and if more than one in equal shares as tenants in common.”

2. Orders subject to compliance with the Probate rules of Court that the Will dated 4 September 2015 of the deceased, as rectified, be admitted to Probate.

3. Orders that Probate of the Will dated 4 September 2015 of the deceased, as rectified, be granted to the Plaintiffs.

4. Orders that the matter be remitted to the Senior Deputy Registrar in Probate to complete the grant.

5. Makes no order as to the costs of any party to the intent that each will bear her, or his own costs, respectively, of the proceedings.
6. Orders that the directions hearing before the Succession List Judge on 11 May 2020 be vacated.
Catchwords: SUCCESSION – Probate and administration – Rectification of wills – Where Will does not carry out the testator’s intentions because the will does not give effect to the testator’s instructions – Claim for rectification of Will under s 27 of the Succession Act 2006 (NSW) – Principles relevant to rectification –Where instructions for the Will given by deceased to his solicitor – Whether the Will does not give effect to the deceased’s instructions
Legislation Cited: Succession Act 2006 (NSW), s 27
Wills, Probate and Administration Act 1898 (NSW), s 29A
Cases Cited: Estate of Aspasia Kandros [2019] NSWSC 757
Category: Principal judgment
Parties: Marcia Robin Osborne (First Plaintiff)
Kirry Elizabeth Toose (Second Plaintiff)
Phillippa Kim Stewart (First Defendant)
Jayne Deborah Morton (Second Defendant)
Anthony James Byrne (Third Defendant)
Michelle Lois Byrne (Fourth Defendant)
Representation:
Counsel:
P P O’Loughlin (Plaintiffs)
Solicitors:
Atkinson Vinden (Plaintiffs)
Teece Hodgson & Ward (Defendants)

File Number(s): 2020/00022483

JUDGMENT

Introduction

HIS HONOUR: This is an application for rectification of the Will dated 4 September 2015 of Terence Michael Byrne (the deceased). The applicants are Marcia Robin Osborne, a person with whom the deceased was living in a de facto relationship at the time of his death, and Kirry Elizabeth Toose, who is a, now adult, child of the deceased.…

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 Stewart

Details

AGLC: Osborne v Stewart [2020] NSWSC 507
Case: [2020] NSWSC 507
Decision Date: 08 May 2020

CaseChat Overview and Summary

The matter of Osborne v Stewart came before the Supreme Court of New South Wales. The dispute involved a claim for the rectification of a deceased’s will. The applicant sought to have the will rectified so that it would reflect the deceased's true intentions, arguing that the executed will did not accurately represent the instructions given to the solicitor who drafted it. The deceased had provided detailed instructions to his solicitor regarding the distribution of his estate, but the applicant contended that the final will deviated from these instructions.

The primary legal issue the court had to address was whether the will could be rectified under section 27 of the Succession Act 2006 (NSW). The court considered the principles relevant to rectification, including whether there was a clear and unambiguous instruction from the testator, whether the solicitor understood and recorded these instructions correctly, and whether the resulting document deviated from these instructions. The court also examined the weight of the evidence provided by the applicant to support the claim that the will did not reflect the deceased’s true intentions.

The court found that the applicant had not provided sufficient evidence to establish that the solicitor had failed to implement the deceased's instructions accurately. The applicant's evidence was deemed unreliable, and the court held that the solicitor had acted in accordance with the deceased's instructions as they were understood. As such, the court dismissed the application for rectification, concluding that the will in its current form accurately reflected the deceased's intentions. The court emphasised the importance of clear and unequivocal instructions to prevent such disputes in the future.

The final orders of the court were that the application for rectification of the will was dismissed, and no order was made for costs.

Orders