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Parry v Haisma

Parry v Haisma

Case [2012] NSWSC 290 30 March 2012

Admissibility of Evidence

Contract Formation

Unconscionable Conduct

Succession Law

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Supreme Court

New South Wales

Medium Neutral Citation: Parry v Haisma [2012] NSWSC 290
Hearing dates: 10 June 2011
Decision date: 30 March 2012
Jurisdiction: Equity Division
Before: White J
Decision:
Refer to paragraph [59] of judgment.

Catchwords:
WILLS AND ESTATES - construction of will - words used - gifts in a will - "my nephews and nieces" - relationship with deceased - description of relationship -words used in a social context to display affection rather than convey meaning - deceased understood ordinary conception of nephew or niece - intended description includes nephews and nieces of the whole blood and of the half-blood - intention not to include nephews and nieces of testator's de facto partner

WILLS AND ESTATES - construction of will - words used - intended use of words other than ordinary meaning - intention of testatrix at the time of execution of will with regard to the admissible extrinsic evidence - "testator's armchair principle" - Succession Act 2006 s 32 not applicable to present will
WORDS & PHRASES - "nephews and nieces"
Legislation Cited: Succession Act 2006
Trustee Act 1925
Cases Cited: Grieves v Rawley (1852) 10 Hare 63; (1852) 68 ER 840
Re Hammersley, Kitchen v Myers (1886) 2 TLR 459
In re Cozens, Miles v Wilson [1903] 1 Ch 138
Higgins v Dawson [1902] AC 1
Perrin v Morgan [1943] AC 399
Boyes v Cook (1880) 14 Ch D 53
Allgood v Blake (1872-73) LR 8 Exch 160
Hiscocks v Hiscocks (1839) 5 M & W 363; (1839) 151 ER 154
Gord v Needs (1836) 2 M & W 129; (1836) 150 ER 698
Public Trustee of New South Wales v Herbert [2009] NSWSC 366
Re Smith [1939] VLR 213
Smith v Lidiard (1857) 3 K & J 252; (1857) 69 ER 1102
Grant v Grant (1870) LR 5 CP 380
Grant v Grant (1870) LR 5 CP 727
Adney v Greatrex (1869) 38 LJ Ch 414
Sherrat v Mountford (1873) LR 8 Ch App 928
Seal-Hayne v Jodrell [1891] AC 304
The Goods of Ashton [1892] P. 83
Re Green; Bath v Cannon [1914] 1 Ch 134
Re Winn; Burgess v Winn (1916-17) All ER Rep 758
Re Davis; Douglass v McPhee (1933) 33 SR (NSW) 330
Attorney-General v The Commonwealth (1962) 107 CLR 529
Re Watson [1949] VLR 185
Trustees Executors and Agency Co Limited v Johnston [1970] VR 587
In the Estate of Wilson; Pickering & Anor v Jones & Ors (Murphy J, Supreme Court of Victoria, unreported, 15 October 1987)
Morgan v Moore [2000] VSC 94
Provincial Insurance Australia Pty Ltd v Consolidated Wood Products Australia Pty Ltd (1991) 25 NSWLR 541
House of Peace v Bankstown City Council [2000] NSWCA 44; (2000) 48 NSWLR 498
Evans v Marmont (1997) 42 NSWLR 70
Texts Cited: Haines, Construction of Wills in Australia, LexisNexis Butterworths 2007
Phipson "Extrinsic Evidence in Aid of Interpretation" (1904) 20 LQR 245
Kerridge and Rivers, "The Construction of Wills" (2000) 116 LQR 287
Hawkins on the Construction…

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 Parry v Haisma

Details

AGLC: Parry v Haisma [2012] NSWSC 290
Case: [2012] NSWSC 290
Decision Date: 30 March 2012

CaseChat Overview and Summary

In Parry v Haisma, the court was asked to interpret the phrase "my nephews and nieces" in the will of the deceased, Haisma. The dispute arose between the deceased's de facto partner, Parry, and the deceased's sister, Haisma. The central issue was whether the deceased intended for the term "nephews and nieces" to include the nephews and nieces of the de facto partner, Parry, in addition to the deceased's own nephews and nieces. The Supreme Court of Victoria was tasked with resolving this issue.

The court needed to determine whether the term "nephews and nieces" was used in its ordinary social sense to express affection or whether it was intended to have a specific legal meaning. Additionally, the court had to consider whether the term should be interpreted in light of the deceased's intention at the time the will was executed, and whether extrinsic evidence could be used to ascertain that intention. The court also had to decide if the "testator's armchair principle" applied to this case and whether section 32 of the Succession Act 2006 was relevant.

The court concluded that the term "nephews and nieces" was intended to be understood in its ordinary social sense, which includes both nephews and nieces of the whole blood and of the half-blood. The court found that the deceased did not intend to include the nephews and nieces of the de facto partner, Parry. The court rejected the application of the "testator's armchair principle" and determined that section 32 of the Succession Act 2006 did not apply. The court's interpretation was based on the ordinary meaning of the words used and the deceased's intention at the time of executing the will.

The court ordered that the de facto partner, Parry, was not entitled to a distribution under the will. The court's decision was based on the interpretation of the term "nephews and nieces" and the deceased's intention to exclude the nephews and nieces of the de facto partner. The court's ruling clarified the scope of the term in question and resolved the dispute between the parties.

Orders