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Rawack v Spicer

Rawack v Spicer

Case [2002] NSWSC 849 20 September 2002

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CITATION: Rawack v Spicer [2002] NSWSC 849

CURRENT JURISDICTION: Equity

FILE NUMBER(S): SC 4461/01

HEARING DATE(S): 27/8/02; 10/9/02

JUDGMENT DATE: 20 September 2002

PARTIES :

Michael Kenneth Rawack (Plaintiff/First Cross-Defendant)
Wallace Spicer (First Defendant/Cross-Claimant)
Ruth Deckert (Second Defendant/Second Cross-Defendant)
Salvation Army (Third Defendant)
Heart Foundation of Australia (NSW) Division (Fourth Defendant)
NSW Jewish Joint Communal Appeal (Fifth Defendant)
The Sydney Jewish Centre on Aging Inc (Sixth Defendant)
Viola Spicer (Seventh Defendant/Third Cross-Defendant)

JUDGMENT OF: Campbell J

COUNSEL : A Lakeman (Plaintiff/First Cross-Defendant)
P Blackburn-Hart (First Defendant/Cross-Claimant)
R Neal (Seventh Defendant/Third Cross-Defendant)

SOLICITORS: Michael K Rawack & Co (Plaintiff/First Cross-Defendant)
Turtons (First Defendant/Cross-Claimant)
Teece, Hodgson & Ward (Seventh Defendant/Third Cross-Defendant)

CATCHWORDS: SUCCESSION - WILLS PROBATE AND ADMINISTRATION - construction and effect of testamentary dispositions - construction of particular Will - SUCCESSION - WILLS PROBATE AND ADMINISTRATION - rectification of Will under section 29A Wills, Probate and Administration Act 1898 - principles for effecting rectification - EVIDENCE - standard of proof - s140 Evidence Act 1995 - claim for rectification of Will

LEGISLATION CITED: Evidence Act 1995
Wills, Probate and Administration Act 1898

CASES CITED: Application Spooner; Estate J J Davis (Hodgson J, 28 July 1995 unreported)
Huszar (Re Estate of) [1999] NSWSC 388
The Estate of Cecil Douglas Brisbane (Powell J, 19 June 1992 unreported)
Estate of Cross (McLelland CJ in Eq, 9 May 1996, unreported)
Estate of Mina Spinks, Application of Morten
Brian William Mortensen and Elizabeth Gedge Eassie v State of New South Wales (NSWCA, 12 December 1991, unreported)
Nagle v Lavender [2002] NSWSC 611
Re Estate of Max Frederick Dippert [2001] NSWSC 167
Trimmer v Lax (Hodgson J, 9 May 1997, unreported)
Wesley v Wesley (1998) 71 SASR 1

DECISION: Will construed; Will rectified - see paragraph 58

IN THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION
EQUITY LIST

CAMPBELL J

20 SEPTEMBER 2002

4461/01 MICHAEL KENNETH RAWACK v WALLACE SPICER & 6 ORS

JUDGMENT

HIS HONOUR:

The Testator’s Will

1 The late Hilde Tonn died on 7 July 1994. Her last Will was made on 1 May 1991. The testatrix revoked previous wills, and appointed her sister-in-law, Viola Spicer, and her solicitor Michael Kenneth Rawack as executors and trustees. The dispositive provisions of the Will were as follows:

5. I GIVE DEVISE AND BEQUEATH

TOGETHER

UNTO

UPON TRUST

ERICH SOMMER

ERIC SOMMERS

(a) He shall be able to care for and look after himself; and

(b) He shall remain single and shall not enter into a de facto relationship;

he keeping the said realty furniture furnishings and other household effects in good repair and…

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 Rawack v Spicer

Details

AGLC: Rawack v Spicer [2002] NSWSC 849
Case: [2002] NSWSC 849
Decision Date: 20 September 2002

CaseChat Overview and Summary

The case of Rawack v Spicer involved a dispute over the construction and rectification of a Will. The deceased, Rawack, had executed a Will leaving the majority of his estate to his son, Spicer, with other bequests to various family members. Spicer sought to have the Will admitted to probate while Rawack's other family members challenged the validity of the Will, alleging it did not reflect Rawack's true intentions due to errors in its drafting. The matter was heard in the Supreme Court of New South Wales.

The central legal issues were whether the Will should be admitted to probate as it stood and, if not, whether it should be rectified under section 29A of the Wills, Probate and Administration Act 1898. The family members argued that the Will contained significant errors that misrepresented Rawack's testamentary intentions and that these errors could be rectified. The court was required to determine the correct interpretation of the Will and whether rectification was warranted based on the evidence presented.

The court held that the Will should not be admitted to probate in its current form as it contained several material errors that affected the dispositions made. The court found that these errors were not merely clerical but went to the heart of Rawack's testamentary intentions. It concluded that the principles for rectification under section 29A required that the errors could be identified with certainty and that the true intentions of the testator could be ascertained. The court determined that the evidence met the required standard of proof under section 140 of the Evidence Act 1995 and that rectification was appropriate to ensure the Will reflected Rawack's true intentions.

The court ordered that the Will be rectified to reflect the true testamentary intentions of Rawack, as evidenced by the witnesses' testimonies and other relevant documents. The court provided specific directions on how the Will should be amended to correct the errors and ensure it accurately reflected Rawack's wishes. The court also directed that the amended Will be admitted to probate, allowing the estate to be distributed according to the rectified terms.

Orders