Public Trustee v Bott - [2017] TASSC 43

[2017] TASSC 43

COURT: SUPREME COURT OF TASMANIA

CITATION: Public Trustee v Bott [2017] TASSC 43

PARTIES: PUBLIC TRUSTEE (as Executor named in the will of MELGAARD, Westley Christian Henry)
v
BOTT, Linda
McCONNON, Anne
LAUNCESTON CITY MISSION
CATHOLIC ARCHBISHOP OF TASMANIA
MARTIN, Kristy
MARTIN, Stephen
MARTIN, Darren
CAREY, Sharon
MELGAARD, Philip
FRENCH, Maxim
PRINS (nee FRENCH), Amanda Jane
ODOU, Joy Elizabeth
MELGAARD, Ronald Gregory
MELGAARD, Glenys Louise

FILE NO:  466/2013
DELIVERED ON:  13 July 2017
DELIVERED AT:  Hobart
HEARING DATES:  19 September and 23 November 2016
JUDGMENT OF:  Tennent J

CATCHWORDS:

Succession – Revocation –Methods of revocation – Other wills, codicils or writings – File note about cancellation of will made by a staff member of Public Trustee – Testator did not know of its existence – Could it be said that file note embodied the testamentary intentions of testator or that he intended by it to revoke his will.

Fast v Rockman [2013] VSC 18, considered.
Wills Act 1992 (Tas), s 26.
Wills Act2008 (Tas), ss 5, 10.
Aust Dig Succession [1072]

REPRESENTATION:
Counsel:
           Applicant:  T J Williams
           First Respondent:  No appearance
           Second Respondent:  No appearance
           Third Respondent:  No appearance
           Fourth Respondent:  Z Nicholson
           Fifth Respondent:  E Hughes
           Sixth Respondent:  E Hughes
           Seventh Respondent:  E Hughes
           Eighth Respondent:  In person on 19/9/16, no appearance on 23/11/16
           Ninth Respondent:  C Gunson SC
           Tenth Respondent:  C Gunson SC
           Eleventh Respondent:                  C Gunson SC
           Twelfth Respondent:  C Gunson SC
           Thirteenth Respondent:               C Gunson SC
           Fourteenth Respondent:              C Gunson SC
Solicitors:
           Applicant:  Timothy Williams
           Fourth Respondent:  Page Seager
           Fifth Respondent:  Rae & Partners
           Sixth Respondent:  Rae & Partners
           Seventh Respondent:  Rae & Partners
           Ninth Respondent:  Palmer, Stevens & Renwick
           Tenth Respondent:  Palmer, Stevens & Renwick
           Eleventh Respondent:                  Palmer, Stevens & Renwick
           Twelfth Respondent:  Palmer, Stevens & Renwick
           Thirteenth Respondent:               Palmer, Stevens & Renwick
           Fourteenth Respondent:              Palmer, Stevens & Renwick

Judgment Number: [2017] TASSC 43
Number of paragraphs: 44

Serial No 43/2017
File No 455/2013

PUBLIC TRUSTEE (as Executor named in the will of
WESTLEY CHRISTIAN HENRY MELGAARD) v
LINDA BOTT, ANNE McCONNON, LAUNCESTON CITY MISSION, CATHOLIC ARCHBISHOP OF TASMANIA, KRISTY MARTIN, STEPHEN MARTIN, DARREN MARTIN, SHARON CAREY, PHILIP MELGAARD, MAXIM FRENCH, AMANDA JANE PRINS (nee FRENCH), JOY ELIZABETH ODOU, RONALD GREGORY MELGAARD, GLENYS LOUISE MELGAARD

REASONS FOR JUDGMENT TENNENT J

13 July 2017

Westley Christian Henry Melgaard (the deceased) died on 7 February 2012. He had made a will through the Public Trustee, dated 26 March 1996 (the Will). By the Will, the Public Trustee was appointed executor of the deceased's estate. Because of certain events which occurred in February 2009, at the time of the deceased's death the Public Trustee was uncertain whether the Will remained a valid will or had been revoked.
In the circumstances, the Public Trustee made an application to this Court. That application purported…

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 Public Trustee v Bott

Details

AGLC: Public Trustee v Bott [2017] TASSC 43
Case: [2017] TASSC 43
Decision Date: 13 July 2017

CaseChat Overview and Summary

The case of Public Trustee v Bott involved the Public Trustee as the plaintiff and Bott as the defendant. The dispute centred on the validity of a file note created by a staff member of the Public Trustee, which suggested the cancellation of an existing will. The matter was heard in the Supreme Court of South Australia. The central legal issue was whether the file note could be considered as embodying the testamentary intentions of the testator or if it evidenced his intention to revoke his will. Specifically, the court had to determine if the file note was a valid instrument of revocation, considering that the testator was unaware of its existence and did not intend to revoke his will.

The court examined the principles of revocation of wills, focusing on whether the file note could be deemed a valid method of revocation under the relevant statutory provisions. It was established that for a revocation to be valid, the testator must have the intention to revoke the will, and this intention must be communicated in a clear and unequivocal manner. The court concluded that since the testator had no knowledge of the file note and did not intend for it to serve as a revocation, it could not be said that the note embodied his testamentary intentions or that he intended to revoke his will. The file note did not meet the legal requirements for a valid revocation of a will.

In light of the findings, the court determined that the file note did not constitute a valid revocation of the testator's will. Consequently, the testator's will remained in effect, unaffected by the file note. The court's decision affirmed the importance of the testator's knowledge and intent in the revocation of a will. The final orders of the court were that the file note did not constitute a valid revocation of the will and that the testator's will remained valid and in effect.

Orders