Public Trustee v Taylor - [2020] SASC 122

SUPREME COURT OF SOUTH AUSTRALIA
(Testamentary Causes Jurisdiction: Application)
PUBLIC TRUSTEE v TAYLOR & ORS
[2020] SASC 122
Judgment of The Honourable Justice Stanley
2 July 2020
SUCCESSION - ADMINISTRATION OF ESTATE - DISTRIBUTION - MATTERS RELATING TO BENEFICIARIES - PRESUMPTION OF DEATH AND SURVIVORSHIP
SUCCESSION - CONSTRUCTION AND EFFECT OF TESTAMENTARY DISPOSITIONS - WHAT INTEREST PASSES - JOINT TENANCY AND TENANCY IN COMMON - JOINT TENANCY
SUCCESSION - CONSTRUCTION AND EFFECT OF TESTAMENTARY DISPOSITIONS - TESTAMENTARY DISPOSITIONS GENERALLY - WHAT PROPERTY TRANSFERABLE BY WILL
The Public Trustee brought an application pursuant to s 69 of the Administration and Probate Act 1919 (SA) (the Act) seeking advice and direction regarding the disposition of jointly owned assets of Sigrid Karla Todt and Karl Heinz Todt following their deaths on 20 September 2015. Karl and Sigrid Todt were husband and wife.
The Public Trustee sought the following orders:
1. A declaration that the evidence is insufficient to establish that either of Karl Heinz Todt deceased or Sigrid Todt deceased died before the other.
2. Advice and direction that the land comprised in Certificate of Title Register Book Volume 5259 Folio 111 being the house property situated at and known as 44 Boord Street Semaphore South in the State of South Australia and funds standing to the credit of a joint account of Karl Heinz Todt and Sigrid Todt at any bank or financial institution, are each not subject to any disposition contained in the wills of Karl Heinz Todt and Sigrid Todt.
3. Advice and direction that the first defendant Harold Raymond Taylor in his capacity as the executor and trustee of the will of Karl Heinz Todt and the plaintiff the Public Trustee in its capacity as executor and trustee of the will of Sigrid Todt are each entitled to administer the said land as on an intestacy on behalf of the next of kin of Karl Heinz Todt and Sigrid Todt respectively.
4. Advice and direction that the persons entitled to share in the distribution of the said land are as to one moiety the next of kin of Karl Heinz Todt and as to the other moiety the next of kin of Sigrid Todt.
5. An order that the Registrar-General record an entry on the relevant Certificate of Title Register Book Volume 5259 Folio 111 for an application to be made by Harold Raymond Taylor to be the registered proprietor an estate in fee simple of one undivided moiety as the executor of the will of Karl Heinz Todt deceased or otherwise in the estate of Karl Heinz Todt deceased and for an application to be made by the Public Trustee to be the registered proprietor of one undivided moiety as the executor of the will of Sigrid Todd deceased or otherwise in the estate of Sigrid Todt.
6. A declaration that the net funds standing in the bank account in the joint names of Karl Heinz Todt and Sigrid Todt at any bank or financial institution are due…

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 Taylor

Details

AGLC: Public Trustee v Taylor [2020] SASC 122
Case: [2020] SASC 122
Decision Date: 2 July 2020

CaseChat Overview and Summary

In Public Trustee v Taylor, the matter involved the distribution of jointly owned property under the wills of two deceased individuals. The key legal issues were whether the deceased's wills could effectively transfer jointly owned property and whether the presumption of death order in cases of commorientes (where two parties die simultaneously and it is unclear who died first) should be codified in law. The Supreme Court of South Australia considered whether the deceased could dispose of jointly owned property through their wills and if the lack of a statutory presumption on the order of death in such circumstances should prompt legislative action.

The court concluded that a testator cannot dispose of jointly owned property through a will, as joint tenancy operates on the principle of survivorship. The court reaffirmed its previous decision in Thiel, asserting that where survivorship cannot be established in cases of commorientes, the jointly owned property should be treated as if it were held as tenants in common. This approach ensures that the property is not subject to the deceased's wills but rather devolves according to intestacy laws. The court rejected the argument that the earlier decision was per incuriam and upheld the fundamental principles of property law regarding joint tenancy.

The court further highlighted the need for legislative consideration to establish a statutory presumption of death order in cases of commorientes, similar to other Australian jurisdictions. While acknowledging the practical difficulties in such cases, the court noted that only South Australia lacks such a presumption. The court's decision was consistent with its previous judgments, reinforcing the principle that jointly owned property cannot be devised through a will and should be administered according to intestacy laws when survivorship cannot be determined.

The final orders of the court directed the Public Trustee to bring into court minutes reflecting the reasons for the decision and invited the parties to present their costs submissions. This outcome underscored the importance of statutory clarity in addressing the complexities arising from simultaneous deaths and the distribution of jointly owned property.

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

The outcome of this application highlights the need for the Parliament to consider whether legislative change should be made to provide a statutory presumption in relation to the order of death where joint tenants die in circumstances where survivorship cannot be proved. In some jurisdictions, for purposes affecting the title to jointly owned property, a statutory presumption has been enacted that death occurred in order of seniority.[22] The presumption can be rebutted by evidence that the deaths did not occur in order of seniority. In Western Australia, the Northern Territory and the Australian Capital Territory if there is doubt as to which joint tenant survived the other, the property devolves as though the joint tenants have held the property as tenants in common in equal shares.[23] South Australia is the only jurisdiction that does not provide a statutory presumption in the case of commorientes. [22] Conveyancing Act 1919 (NSW) s 35; Property Law Act 1958 (Vic) s 184; Succession Act 1981 (Qld) s 65 (younger presumed to have survived older for a period of one day); Presumption of Survivorship Act 1921 (Tas) s 2; Civil Law (Property) Act 2006 (ACT) s 213. [23] Property Law Act 1969 (WA) s 120(d); Law of Property Act 2000 (NT) s 216(2)(d); Administration and Probate Act 1929 (ACT) s 49Q(2).Conclusion For these reasons I am satisfied I should make the orders sought by the Public Trustee. I direct the Public Trustee to bring into Court minutes of order reflecting these reasons. I would hear the parties as to costs.

Ratio Decidendi

Legal Principle Established

This approach has been consistently taken by this Court at least since the judgment of Angas Parsons J in In Re Caire: Public Trustee v Lykke[9] and subsequently followed in In the Matter of the Estates of Ronald Ross Miller and Ila Gladys Miller,[10] Re Arnold[11] and In the Matter of the Estates of Hans Karl Eugen Schlicker and Rosina Schlicker,[12] In the Estates of Robert Brian Johnston and Dorothy Ann Johnston (Deceased),[13] In the Estate of Dawson (Deceased)[14] and In the Estate of Thiel.[15][9] Unreported, Action No. 1517 of 1927 but noted in (1927) 1 ALJ 307.[10] Unreported, Action No. 1226 of 1958, Ross J.[11] Unreported, No. 460 of 1963, Deputy Master Olsson.[12] Action No. 1158 of 1995, Judge Anderson.[13] Unreported, Action No. 1701 of 2011, Judge Lunn.[14] [2016] SASC 89.[15] [2017] SASC 1.Consideration The second defendant submits that I should not follow the approach in my earlier judgment in Thiel as it was decided per incuriam. I do not accept that submission. Thiel was a case of commorientes. The evidence could not establish who died first. Each was the principal beneficiary under the other’s will. The difficulty was that they were registered proprietors of real property as joint tenants. I said:[16] As joint tenants they were each seized with an interest in the whole of the estate. The right of survivorship provides that on the death of a joint tenant, the interest of that tenant passes by the right of survivorship to any remaining joint tenant or tenants. As was observed by the author of The Principles of the Australian Lands Titles (Torrens) System:The right of survivorship in joint tenancy springs from the unity of interest which exists between joint tenants, joint tenants being said to be seized per my et per tout, that is, each of them has the entire possession as well of every part as of the whole. It follows that, in the case of commorientes, where survivorship cannot be shown, the moieties are transmissible in severalty.…In these circumstances it is appropriate that the court declare that the wills of the deceased fail to have any dispositive effect and order the Registrar-General to record an entry on the Certificate of Title that the executor as trustee of each estate is entitled to an estate in fee simple in an undivided moiety and order that the estates of the deceased persons be administered as if on an intestacy. [Citations omitted][16] [2017] SASC 1 at [8], [10]. I am unpersuaded that there is any error in the approach taken by me in Thiel. On the contrary, I remain of the view that it is consistent with the fundamental principles of property law. It is the defining feature of joint tenancy that a joint tenant owns the whole but by himself or herself owns nothing, and accordingly, cannot devise it under his or her will. That is the underlying rationale for the approach in Thiel and the earlier authorities to which I have referred. Accordingly, the terms of the deceaseds’ wills are irrelevant to the issue of who takes the jointly owned property of the deceased. Jointly owned property cannot pass under a will and it cannot pass on a single joint tenant’s intestacy. It follows that the application does not fall to be decided as a matter of construction of the wills as submitted by the first defendant. It falls to be decided on the anterior question of whether a testator can dispose of jointly owned property by his or her will.