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Public Trustee v Herbert

Public Trustee v Herbert

Case [2009] NSWSC 366 8 May 2009

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CITATION: Public Trustee v Herbert [2009] NSWSC 366

HEARING DATE(S): 14/04/09

JUDGMENT DATE :
8 May 2009

JURISDICTION: Equity Division

JUDGMENT OF: Macready AsJ at 1

CATCHWORDS: SUCCESSION - Wills, probate and administration - Construction - Evidence of surrounding circumstances to the making of the will - Evidence of testator’s knowledge of family and beneficiaries - Identification of person referred to in will – Held that on a true construction of the second defendant is the person entitled to the gift in clause 4 of the will. - SUCCESSION- Cross claim for rectification of will under s 29A Wills, Probate and Administration Act 1898- Late application- Whether sufficient cause is shown for the failure to make application in time- Held cross claim does not need to be determined

PARTIES: Public Trustee of NSW v Herbert (Estate of Wallace John Trembath)

FILE NUMBER(S): SC 1333/06

COUNSEL: Mr M Meek for plaintiff
Mr R McPherson for 1st defendant

SOLICITORS: Teece Holdgson Ward for plaintiff
Parry Carroll for 1st defendant
Mr W Allars, Vincen Love & Co for 3rd defendant

- 1 -

IN THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION

ASSOCIATE JUSTICE MACREADY

Friday 8 May 2009

1333/06 PUBLIC TRUSTEE OF NEW SOUTH WALES v STANLEY HERBERT (ESTATE OF WALLACE JOHN TREMBATH)

JUDGMENT

1 HIS HONOUR: This is the hearing of the plaintiff’s amended summons in which it seeks a determination as to the true construction of the will of the of the late Wallace John Trembath dated 21 January 1988. The question concerns the entitlement to the gift in clause 4 of the will. It is either the first, second or third defendant or, alternatively, there may be an intestacy in respect of the provision. The summons also seeks an order that the plaintiff is justified in distributing the estate of the deceased to the second defendant.

2 There is also a cross summons brought by the first defendant, Mr Stanley Herbert, seeking an order pursuant to section 29A of the Wills Probate and Administration Act 1898 rectifying the will of the deceased in order to change the name “Hubbard” to “Herbert”.

Background

3 In order to understand the application it is necessary to notice a number of matters concerning the history of the deceased.

4 The deceased, John Trembath, was born on 23 November 1927 and died on 13 January 2000 aged 72. He was the 10th of 12 children of William James Trembath and Norah Agnes Hall. He did not marry and had no children. To understand the evidence it should be noted that the deceased was known as “Jack” or “Uncle Jack”.

5 In December 1938 the first defendant, Edward Stanley Herbert (known as “Stanley”), was born and he is now aged 70. In 1960 he married Dawn Patricia Bamford a child of Dorothy Olga Lowe one of the deceased’s siblings. Dorothy was the 9th of the 12 children. Dawn Bamford and Stanley Herbert met in 1958 and they were engaged in May of that year.…

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 Herbert

Details

AGLC: Public Trustee v Herbert [2009] NSWSC 366
Case: [2009] NSWSC 366
Decision Date: 8 May 2009

CaseChat Overview and Summary

Public Trustee v Herbert involved a dispute over the interpretation of a will, specifically clause 4, which made a bequest to an individual named 'John'. The second defendant, Herbert, claimed that he was the intended beneficiary of the gift. The matter was heard in the Supreme Court of Victoria. The court had to determine whether the second defendant was indeed the person referred to as 'John' in the will and if surrounding circumstances could be considered to clarify the testator's intent.

The legal issues centred on the interpretation of clause 4 of the will and whether evidence of the testator's knowledge of his family and beneficiaries, along with surrounding circumstances, could assist in identifying the person referred to as 'John'. The court also needed to consider whether the cross claim for rectification of the will under s 29A of the Wills, Probate and Administration Act 1898 could be entertained given the late application and whether sufficient cause was shown for the delay.

The court found that the evidence of surrounding circumstances was relevant and could assist in the true construction of the will. Based on the evidence, the court concluded that the second defendant, Herbert, was the person intended to receive the gift in clause 4. The court determined that the cross claim for rectification did not need to be determined as the true construction of the will had already been established. The court's decision confirmed Herbert's entitlement to the gift under clause 4 of the will.

Orders