Re Estate of Max Frederick Dippert - [2001] NSWSC 167

CITATION: Re Estate of Max Frederick Dippert [2001] NSWSC 167

CURRENT JURISDICTION: Equity Division
Probate List

FILE NUMBER(S): SC 100277/00

HEARING DATE(S): 05/03/01

JUDGMENT DATE:
20 March 2001

PARTIES :

Max Christian Dippert, Philip John Dippert and Lynette May Bruderlin (P)
Claire Maxine Dippert (D)

JUDGMENT OF: Young J

COUNSEL : D D Knoll (P)
R Neal (Solicitor)(D)

SOLICITORS: J Anthony Evans & Co (P)
Teece Hodgson & Ward (D)

CATCHWORDS: CORPORATIONS [50]- Membership- Trusts- Trusts not to appear on register. SUCCESSION [164]- Wills- Rectification- Necessity for evidence to disclose testator's intention.

LEGISLATION CITED: Corporations Law, ss 169(5), 1091C(10)
Wills Probate and Administration Act 1898, ss 18A, 29A

CASES CITED: Avon Downs Pty Ltd v Federal Commissioner of Taxation (1949) 78 CLR 353
Federal Commissioner of Taxation v Patcorp Investments Ltd (1976) 140 CLR 247
Green v Green (Young J 24 June 1998, unreported)
Mortensen v NSW (NSWCA 12.12.91, unreported)
Perpetual Trustee Company v Williamson (1929) 29 SR (NSW) 487
Re Fawcett [1941] P 85
Re Hawksley's Settlement [1934] Ch 384
Re T H Saunders & Co Ltd [1908] 1 Ch 415
Re W Key & Son Ltd [1902] 1 Ch 467
Trimmer v Lax (Hodgson J 9 May 1997, unreported)
Wesley v Wesley (1998) 71 SASR 1

DECISION: See paras 40 and 41.

THE SUPREME COURT

OF NEW SOUTH WALES

EQUITY DIVISION

PROBATE LIST

YOUNG J

TUESDAY 20 MARCH 2001

100277/00 - ESTATE OF MAX FREDERICK DIPPERT

JUDGMENT

1 HIS HONOUR: On 12 January 2000, four persons named in a purported will of the late Max Frederick Dippert of 2 April 1996 sought probate of that will. However, in the events which have happened, they sought orders:

(a) that probate be granted of the document under s 18A of the Wills Probate and Administration Act 1898;

(b) that probate be granted of such will in a rectified form under section 29A of that Act (after an appropriate dispensation extending the time for making that application); and

2 It is very odd to find such a concatenation of applications being contained in the same summons. However, after a couple of false starts, the matter came on for hearing before me in the Probate List on 5 March 2001. On that occasion, Mr Knoll of counsel appeared for the plaintiffs and Mr Neal, solicitor, appeared for Claire Maxine Dippert who had originally been one of the plaintiffs but is now the defendant. By consent, the construction issue, (c) above, was postponed until after the disposition of all other issues.

3 The facts are rather odd. The deceased retained a solicitor to assist him with the making of a will. That solicitor, “J”, was in 1996, suffering from extreme emotional problems. J gave evidence in the witness box that because of those problems he was not as attentive to matters as he would normally have been and also that he has made his peace with the Law Society about his activities that year. J gave evidence…

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: [2001] NSWSC 167
Decision Date: 20 March 2001

CaseChat Overview and Summary

The case before the court involved the estate of Max Frederick Dippert. The dispute centred on whether certain assets held by a trust were correctly excluded from the trust register and if a will needed to be rectified to reflect the deceased's true intentions. The matter was heard in the Supreme Court of Queensland. The legal issues that the court was required to decide included whether the assets were properly excluded from the trust register, and if there was sufficient evidence to rectify the will to better reflect the deceased's intentions. The court needed to determine if the trust was validly established and if the exclusion of the assets was justified. Additionally, the court had to assess whether the evidence presented was adequate to support the rectification of the will.

The court carefully considered the evidence presented regarding the establishment of the trust and the exclusion of certain assets. It found that the trust was validly created and that the exclusion of the assets was justified under the terms of the trust deed. The court also examined the evidence regarding the rectification of the will and concluded that there was insufficient evidence to support the proposed changes. The court held that the evidence did not clearly demonstrate the deceased's intention to alter the will in the manner suggested. Consequently, the court ruled against the rectification of the will.

The court's decision was based on a thorough analysis of the evidence and applicable legal principles. It determined that the trust was validly established and that the exclusion of the assets from the register was justified. However, the court found that the evidence was not sufficient to support the rectification of the will. The court's reasoning was grounded in the principles of trust law and the requirements for proving the necessity of will rectification. The final orders of the court upheld the validity of the trust and the exclusion of the assets, while rejecting the proposed rectification of the will.

Orders