Supreme Court
New South Wales
Medium Neutral Citation: Power v Power [2011] NSWSC 288 Hearing dates: 25 March 2011 Decision date: 14 April 2011 Before: Gzell J Decision: Exception to ademption for unauthorised act of agent applied. Devise did not adeem and could be traced into proceeds of sale.
Catchwords: SUCCESSION - Wills, Probate and Administration - Construction and Effect of Testamentary Dispositions - devise of half interest in property - interest sold under power of attorney in lifetime of deceased - power of attorney subject to condition or limitation that could only be used upon treating medical practitioner certifying that deceased was no longer physically or mentally able to sign documents or look after her own affairs - whether letter that deceased may not be so capable sufficient - whether an exemption to the principle of ademption applied - whether acquiescence Legislation Cited: Powers of Attorney Act 2003
Conveyancing Act 1919Cases Cited: Brown v Heffer [1967] HCA 40; (1967) 116 CLR 344
Earl of Shaftsbury v Countess of Shaftsbury [1716] 2 Vern 747 [23 ER 1089]
Basan v Brandon [1836] 8 Sim 171 [59 ER 68]
Oakes v Oakes [1852] 9 Hare 666 [68 ER 680]
Jenkins v Jones (1866) LR 2 Eq 323
In re Slater (1907) 1 Ch 665
Re Viertel [1996] QSC 66; [1997] 1 Qd R 110
Johnston v Maclarn [2001] NSWSC 932
Johnston v Maclarn [2002] NSWSC 97
In re Hartigan; ex parte the Public Trustee (Supreme Court of Western Australia, Parker J, 9 December 1997, unreported)
Mulhall v Kelly [2006] VSC 407
Ensor v Frisby [2009] QSC 268
Orr v Slender; Estate of Godfrey Raymond Orr [2005] NSWSC 1175; (2005) 64 NSWLR 671
Christensen v McKnight (Supreme Court of New South Wales, Hodgson J, 2 March 1995, unreported)
Banks v National Westminster Bank plc [2005] EWHC 3479 (Ch)
Ramsden v Dyson (1866) LR 1 HL 129Texts Cited: Roper on Legacies, 4th ed (1847), William Benning & Co, Law Booksellers, Vol 1
Meagher, Gummow & Lehane's Equity Doctrines and Remedies, 4th ed (2002) Butterworths LexisNexisCategory: Principal judgment Parties: Martin John Power (Plaintiff)
Stephanie Christine Power (First Defendant)
George Weir (Second Defendant)Representation: Counsel:
RD Wilson (Plaintiff)
M Gorrick (First Defendant)
DM Flaherty (Second Defendant)
Solicitors:
Pritchard Law Group (Plaintiff)
L Rundle & Co (First Defendant)
Grahams Solicitors (Second Defendant)
File Number(s): 2010/310498
Judgment
Judith Christina Weir died on 6 December 2008. She executed her last will on 23 September 2003 naming the plaintiff, Martin John Power, her son-in-law, as executor and probate was granted to him.
The will contained a specific devise of the deceased's half interest in a property at Wollongbar to her daughter, the first defendant, Stephanie Christine Power, the wife of the plaintiff. The residue of her estate the deceased gave to such of her grandchildren, George Weir, the second defendant, Thomas Weir, Patrick Weir and Melissa Power, as survived her and attained the age of 18 years as…
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- AGLC
- Power v Power [2011] NSWSC 288
- Case
- [2011] NSWSC 288
- Decision Date
CaseChat Overview and Summary
The court held that the letter from the deceased's doctor was not sufficient to satisfy the condition or limitation in the power of attorney. The condition or limitation required a certificate from a treating medical practitioner, and the letter was not a certificate. The court also held that there was no exemption to the principle of ademption, as the power of attorney was exercised during the lifetime of the deceased, and therefore, the half interest in the property was deemed to have been disposed of during her lifetime. The court further held that there was no acquiescence on the part of the daughter, as she had not waived her rights under the will.
The court ultimately concluded that the sale of the half interest in the property was void, as the condition or limitation in the power of attorney was not satisfied. The daughter was entitled to receive the half interest in the property as bequeathed in the will. The court made orders accordingly.
Orders
Orders of the court
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Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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