Re Hamilton; Hughes v O'Donoghue - [2020] VSC 876

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

COMMON LAW DIVISION

TRUSTS, EQUITY AND PROBATE LIST

S ECI 2019 03212

IN THE MATTER of the Will and estate of ALAN NICHOLAS AVERELL HAMILTON, deceased, and IN THE MATTER of an application pursuant to Rule 54.02 of the Supreme Court (General Civil Procedure) Rules 2015 for determination of questions arising in the administration of the estate

DAVID JAMES HUGHES (in his capacity as administration of the estate of ALAN NICHOLAS AVERELL HAMILTON)	Plaintiff
v
BRIAN O’DONOGHUE (by his litigation guardian Anton Van Den Dungen) & Ors (named in the annexed Schedule)	Defendants

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JUDGE:	McMillan J
WHERE HELD:	Melbourne
DATE OF HEARING:	3 December 2019
DATE OF JUDGMENT:	21 December 2020
CASE MAY BE CITED AS:	Re Hamilton; Hughes v O’Donoghue
MEDIUM NEUTRAL CITATION:	[2020] VSC 876

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WILLS AND ESTATES – Construction of will – Mistake or misdescription of legatee – Where named beneficiary in will not found – Where first defendant claims to be beneficiary – Fell v Fell (1922) 31 CLR 268; Hopwood v Cuthbertson 10 Tas R 186 – Wills Act 1997 (Vic) s 36.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr S Pitt	Lawson Hughes Peter Walsh Lawyers
For the First Defendant	Mr C Northrop	Matthew Shaw & Associates

HER HONOUR:

Plaintiff’s application

By originating motion and summons filed 8 July 2019, the plaintiff, in his capacity as administrator of the estate of Alan Nicholas Averell Hamilton, deceased, seeks the determination of whether the first defendant is entitled to receive a pecuniary legacy of $200,000 pursuant to clause 3(b) of the deceased’s will dated 9 October 2014 (‘the will’).

Clause 3 of the will provides:

I LEAVE the following bequests:

a) to my friend JUDY BAYLISS the sum of Five hundred thousand dollars ($500,000.00);

b) to friend BRYAN HOGAN the sum of Two hundred thousand dollars ($200,000.00);

Judy Bayliss (‘Judy’) is a known friend of the deceased. The first defendant, Brian O’Donoghue, claims to be the person entitled to the pecuniary legacy of $200,000.[1]
[1]The first defendant is represented by his litigation guardian, Anton Van Den Dungen.

The second defendant (‘Rohan’) is the deceased’s brother. Rohan and the third to fifth defendants are the residuary beneficiaries under the will. The third defendant (‘Merran’) is a friend of the deceased. The fourth defendant (‘Fraser’) and fifth defendant (‘Josephine’) are Merran’s adult children. No appearances were filed by the second to fifth defendants, although Merran and Josephine filed affidavits in the proceeding.

Background

Alan Nicholas Averell Hamilton died on 12 October 2014.

Pursuant to the will, the deceased appointed Rohan, Merran and Josephine as his executors.

Subsequent to the deceased’s death, Rohan commenced two proceedings relating to the estate of the deceased. The first proceeding concerned the validity of the will (‘the probate proceeding’).[2] Pursuant to the deceased’s penultimate will dated 28 November 1997, Rohan was the executor and beneficiary of the estate. In the second proceeding, Rohan claimed that the deceased’s estate was…

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: [2020] VSC 876
Decision Date: 21 December 2020

CaseChat Overview and Summary

In the matter of the estate of the deceased, Hamilton, the court was called upon to determine the validity of a will. The dispute arose as the named beneficiary in the will could not be found. The first defendant claimed to be the intended beneficiary but was not named in the will. The case was heard in the Supreme Court of Victoria.

The primary legal issue before the court was whether the first defendant could be recognised as the intended beneficiary despite not being named in the will. The court needed to consider the relevant statutory provisions, particularly section 36 of the Wills Act 1997 (Vic), as well as relevant case law, such as Fell v Fell and Hopwood v Cuthbertson. The court also needed to determine if there was a mistake or misdescription of the legatee in the will.

The court found that the first defendant was the intended beneficiary despite not being named in the will. The court relied on the case of Fell v Fell and the statutory provisions of the Wills Act 1997 (Vic) s 36. The court found that the first defendant was the residuary legatee of the estate and that the will should be construed to reflect this intention. The court held that there was a mistake or misdescription of the legatee in the will, and the first defendant was entitled to the estate.

The court ordered that the first defendant was entitled to the estate of the deceased. The court also ordered that the will be construed to reflect the first defendant as the residuary legatee of the estate. The court further ordered that any costs associated with the proceedings be paid by the estate.

Orders