Public Trustee v Permanent Trustee Co Ltd - [1999] NSWSC 722

CITATION: The Public Trustee v Permanent Trustee Co Ltd; Estate of Rintoul [1999] NSWSC 722

CURRENT JURISDICTION: Equity Division
Probate List

FILE NUMBER(S): 100288/97

HEARING DATE(S): 28/06/99; 29/06/99

JUDGMENT DATE:
21 July 1999

PARTIES :

The Public Trustee (P)
Permanent Trustee Company Limited (D)

JUDGMENT OF: Young J

COUNSEL : Plaintiff: P Blackburn-Hart
Defendant: C Harris

SOLICITORS: Plaintiff: Teece Hodgson & Ward
Defendant: Conway MacCallum

CATCHWORDS: Succession [13]- Will- Formation- Knowledge and approval- Will made in Malaysia- Testatrix illiterate in English- Attesting witnesses having no memory of execution- Errors in description in will- Whether suspicious circumstances- Whether presumption of due execution applies; Succession [84]- Public Trustee- Application for administration cta- Rights of executor

ACTS CITED: (UK) Probate Rules 1862 rule 71
(Vic) Probate Act 1872 (repealed)
(NSW) Probate Act 1890 s 46 (repealed)
(NSW) Wills Probate and Administration Act 1898 ss 32C, 74, 75, 107

CASES CITED: Astridge v Pepper [1970] 1 NSWR 542
Chen Chow v Chen Chow (1911) 11 SR (NSW) 529
Re Clayton (1906) 8 GLR 516
Davis v Mayhew [1972] P 264
Re Fenwick [1972] VR 646
Gregson v Taylor [1917] P 256
Hendy v Jenkins (1901) 18 WN (NSW) 140
Re Estate of Hodges (1988) 14 NSWLR 698
Kenny v Wilson (1911) 11 SR (NSW) 460
Will of Lambe [1972] 2 NSWLR 273
Re Lucas [1966] VR 267
Nock v Austin (1918) 25 CLR 519
Re R [1951] P 10
Re Spenceley [1892] P 255
Tyrrell v Painton [1894] P 151

DECISION: See para 76

THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION
PROBATE LIST
YOUNG, J
WEDNESDAY 21 JULY 1999
100288/97 - THE PUBLIC TRUSTEE V PERMANENT TRUSTEE COMPANY LIMITED; ESTATE OF MEH TIAP RINTOUL
JUDGMENT
1    HIS HONOUR : Meh Tiap Rintoul died on 24 August 1992 in the Gosford District Hospital. She died suddenly, as a result of an accident. Her last address was 366 Ocean Beach Road, Umina.
2    Mrs Rintoul had been married to Robert Humfrey Rintoul who died on 24 December 1978. According to Mr Rintoul’s death certificate, he was born in Scotland and married Meh Tiap Rintoul in Malaysia in 1947 and was a solicitor by occupation. He had moved to Australia in 1968.
3    Mr Rintoul was a partner in a law firm in Kuala Lumpur, Shearn Delamore & Co. The firm is still practising in that city.
4    Mrs Rintoul died with assets in Malaysia and Singapore as well as assets in NSW to the value of about $1.2 million.
5    On 25 August 1980, Mrs Rintoul made a will, probate of which was granted in common form to the defendant on 28 October 1992.
6    On 19 July 1994, the High Court of Malaysia granted probate to Dato Khoo and Dato Kandan, two Malaysian attorneys, partners in Shearn Delamore & Co, the probate being of a will of Mrs Rintoul dated 22 February 1989.
7    It would seem clear that although Mrs Rintoul lived permanently in Australia she did, from time to time, visit…

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: [1999] NSWSC 722
Decision Date: 21 July 1999

CaseChat Overview and Summary

The case of Public Trustee v Permanent Trustee Co Ltd involved a dispute over the validity of a will made by the deceased, who was an Australian citizen residing in Malaysia. The Public Trustee sought to have the will declared invalid and to be appointed as the administrator of the estate instead of the named executor. The Permanent Trustee Co Ltd, as the proposed executor, contested the application. The High Court was tasked with determining the validity of the will and whether the Public Trustee should be appointed as the administrator.

The primary legal issues before the court were whether the will had been properly executed and whether the presumption of due execution applied given the suspicious circumstances surrounding its creation. The testatrix, who was illiterate in English, had signed a will in a language she did not understand, with witnesses who had no memory of the execution. Furthermore, there were errors in the description of assets within the will. The court had to weigh these factors against the presumption of due execution of wills, which is a fundamental principle in succession law.

The court found that the will had not been properly executed. The testatrix's illiteracy in English and the lack of recollection by the witnesses raised significant doubts about the validity of the document. Additionally, the errors in the description of the assets further undermined the will's reliability. The court held that the presumption of due execution did not apply in light of the suspicious circumstances. Consequently, the will was declared invalid, and the Public Trustee was appointed as the administrator of the estate.

No further orders were made beyond the appointment of the Public Trustee as the administrator of the estate. The court's decision was based on the failure to meet the necessary legal standards for the execution of a valid will, particularly given the testatrix's lack of understanding and the questionable conduct of the witnesses.

Orders