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Power v Power

Power v Power

Case [2011] NSWSC 288 14 April 2011

Construction and Effect of Testamentary Dispositions

Ademption

Aquiescence

Succession Law

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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 1919
Cases 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 129
Texts 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 LexisNexis
Category: 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…

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 Power v Power

Details

AGLC: Power v Power [2011] NSWSC 288
Case: [2011] NSWSC 288
Decision Date: 14 April 2011

CaseChat Overview and Summary

The case involved a dispute between the executors of the estate of a deceased, Mrs Power, and her daughter, Mrs Power. The central issue was the construction and effect of a testamentary disposition in Mrs Power's will, which bequeathed half of the interest in a property to her daughter. Prior to her death, Mrs Power had executed a power of attorney, which was subject to a condition or limitation that it could only be exercised if a treating medical practitioner certified that she was no longer physically or mentally capable of signing documents or managing her affairs. During her lifetime, the power of attorney was exercised, and the half interest in the property was sold. The daughter challenged the validity of the sale, arguing that the condition or limitation in the power of attorney was not satisfied, and therefore, the sale was void. The executors argued that the letter from the deceased's doctor, which suggested that she may not be capable of managing her affairs, was sufficient to satisfy the condition or limitation in the power of attorney. The court was required to determine whether the letter was sufficient to satisfy the condition or limitation, and whether an exemption to the principle of ademption applied, or whether there was acquiescence.

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