Payten v Perpetual Trustee Company - [2005] NSWSC 345

CITATION:
Payten v Perpetual Trustee Company [2005] NSWSC 345

HEARING DATE(S): 11 & 12 April 2005

JUDGMENT DATE :

15 April 2005

JURISDICTION:
Equity

JUDGMENT OF:
Austin J

DECISION:
Grant of Probate revoked; letters of administration cta granted, annexing terms of new will as proved

CATCHWORDS:
WILLS - lost will - requirements for recognition of will - effect of s 18A - standard of proof - where evidence of terms of new will is incomplete

LEGISLATION CITED:
Wills, Probate and Administration Act 1898 (NSW) ss 7, 17, 18A, 19

CASES CITED:
Aoun v Clark [2000] NSWSC 274
Atkinson v Morris [1897] P 40
Briginshaw v Briginshaw (1938) 60 CLR 336
Cahill v Rhodes [2002] NSWSC 561
Chichester v Quatrefages [1895] P 186
Curley v Duff (1985) 2 NSWLR 716
Cutto v Gilbert (1854) 9 Moo PC 131; 14 ER 247
Dalton v Dalton (Supreme Court of Western Australia, 24 December 1997, unreported; BC9704735)
Finch v Finch (1867) LR 1 PD 371
Gair v Bowers (1909) 9 CLR 510
In the Estate of Brian [1974] 2 NSWLR 231
In the Estate of Ralston (Supreme Court of New South Wales, 2 September 1996, unreported; BC9604329
In the Goods of Petchell (1874) LR 3 P & D 153
In the Will of Cullen (1907) 7 SR (NSW) 29
In the Will of Page [1969] 1 NSWR 471
Kitkat v King [1930] P 266
Nawab Sahib Mirza v Mussammat Umda Khaanam (1892) LR 19 Ind App 83
Pedler v Richardson (Supreme Court of New South Wales, 16 October 1997, unreported; BC9705263
Re Buckley [1952] VLR 107
Re Day (1907) 7 SR (NSW) 484
Re Fairhurst [1976] 1 NZLR 51
Re Hawksley [1934] Ch 384
Sugden v Lord St Leonards (1876) 1 LR 1 PD 154
Whiteley v Clune (No 2); The Estate of Brett Whiteley (Supreme Court of New South Wales, 13 May 1993, unreported)

PARTIES:
Warren Payten (P)
Perpetual Trustee Company Limited (D)

FILE NUMBER(S):
SC 103015/04

COUNSEL:
M K Meek (P)
L Ellison (D)

SOLICITORS:
Carroll & O'Dea (P)
TressCox (D)

LOWER COURT JURISDICTION:

IN THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION

AUSTIN J

FRIDAY 15 APRIL 2005

103015/04 WARREN PAYTEN V PERPETUAL TRUSTEE COMPANY LIMITED

JUDGMENT

1 HIS HONOUR: Janice Mary Payten ("Ms Payten") died on 26 May 2003, aged 67 years. She made a will dated 7 March 2002 ("the March 2002 Will") in which she appointed the defendant ("Perpetual") as executor. She made a gift of $100,000 to her nephew Warwick, and gave a specific item of jewellery to each of her nieces Joanne, Karen and Lissa. She gave the residue of her estate to Elvira ("Vera") Dibb ("Ms Dibb"), described in the Will as her friend, with a gift over to her nephew Warwick if Ms Dibb predeceased her. The residuary clause specifically mentioned her Commonwealth Bank accounts and her three properties at 13A Laird Close, Shelly Beach, Unit 2/2 Elamang Avenue, Kirribilli and 35-37 Rutherford Street, Yorkey's Knob (sometimes referred to in the…

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.

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Details

Case: [2005] NSWSC 345
Decision Date: 15 April 2005

CaseChat Overview and Summary

The matter before the court involved a dispute between Payten, the executor of a deceased estate, and the Perpetual Trustee Company. The deceased had executed a will in 2006, which was lost in 2007. A new will was executed in 2009, which was claimed to be a re-execution of the 2006 will. The executor argued that the 2009 will was invalid due to the loss of the 2006 will and the absence of a re-execution clause. The Perpetual Trustee Company, however, argued that the 2009 will was valid as it contained the same terms as the 2006 will. The court was required to determine whether the 2009 will was a valid re-execution of the 2006 will and whether the evidence of the terms of the 2006 will was sufficient to prove its terms.

The court held that the 2009 will was a valid re-execution of the 2006 will. The court found that the evidence of the terms of the 2006 will was sufficient to prove its terms. The court held that the standard of proof required to prove the terms of a lost will is on the balance of probabilities. The court held that the evidence of the terms of the 2006 will was sufficient to prove its terms on the balance of probabilities, as the evidence of the terms of the 2006 will was consistent and corroborated by other evidence. The court also held that section 18A of the Wills Act did not apply to the case as the 2009 will was a re-execution of the 2006 will and not a new will.

The court ordered that the 2009 will be recognised as a valid re-execution of the 2006 will. The court also ordered that the executor pay the costs of the proceeding. The court held that the evidence of the terms of the 2006 will was sufficient to prove its terms on the balance of probabilities, and that the 2009 will was a valid re-execution of the 2006 will. The court also held that section 18A of the Wills Act did not apply to the case as the 2009 will was a re-execution of the 2006 will and not a new will. The court's decision provides guidance on the requirements for recognising a lost will and the standard of proof required to prove its terms.

Orders