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Re Swain (Dawn)

Re Swain (Dawn)

Case [2008] NSWSC 1343 15 December 2008

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CITATION: Re Swain (Dawn) [2008] NSWSC 1343

HEARING DATE(S): 1/12/08

JUDGMENT DATE :
15 December 2008

JURISDICTION: Equity Division
Probate List

JUDGMENT OF: Young CJ in Eq

DECISION: Order that the codicil be rectified
the grant of probate in common form be recalled and reissued taking into account the rectification.

CATCHWORDS: SUCCESSION [164]- Plaintiff applies for rectification of codicil under s 29A Wills, Probate and Administration Act 1898- Late application- Whether sufficient cause is shown for the failure to make application in time- Held that the court is reluctant to order rectification out of time given a grant of probate is an order in rem- However, on facts of present case time extended- Consideration of how testatrix's intention should have been expressed- Rectification ordered.

LEGISLATION CITED: Family Provision Act 1982
s 16
Income Tax Assessment Act 1936 (Cth)
s 102AG
Succession Act 2006
s 27
Wills
Probate and Administration Act 1898
s 29A

CATEGORY: Principal judgment

CASES CITED: Green v Green [1998] NSWSC 272
Mortensen v New South Wales (C/A
12/12/1991
unreported)
Rawack v Spicer [2002] NSWSC 849
Re Brisbane (Powell J
19/06/1992
unreported)
Re Burrows (1906) 6 SR (NSW) 606
Re Hogg (Young J
12/03/2001
unreported)
Re Johnson [1953] 4 DLR 777
Rhodes v Rhodes (1882) 7 App Cas 192
Sophron v Nominal Defendant (1957) 96 CLR 469
Trimmer v Lax [1997] NSWSC 189
Trustee of the AW Furse No 5 Will Trust v Federal Commissioner of Taxation (1990) 91 ATC 4007
Warren v McKnight (1996) 40 NSWLR 390

PARTIES: Anthony James Edgar Swain (P)

FILE NUMBER(S): SC 116903/07

COUNSEL: D B McGovern SC (P)

SOLICITORS: Gain Kent McRae (P)

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

YOUNG CJ in EQ

Monday 15 December 2008

116903/07 - RE SWAIN (DAWN)

JUDGMENT

1 YOUNG CJ in EQ: This is an application under s 29A of the Wills, Probate and Administration Act 1898 for rectification of the codicil to the will of the late Dawn Swain made on 8 March 2005.

2 Mrs Swain died on 11 March 2005.

3 On 30 August 2005, the testatrix’s son Anthony Swain took out probate in Mrs Swain’s estate.

4 Under Mrs Swain’s will which was made 25 June 2002, in the events which have happened, Anthony Swain took the whole estate. This is the result of cl 4 of the will by which the testatrix said:

“I give the whole of my estate to my son”

5 The codicil is in simple terms. It has two clauses, the second of which merely confirms the will. The first reads as follows:

I ADD

‘8. Excluded from my assets in clause 4 herein are the following:

(i) all my debentures;

(ii) all my bank accounts;

(iii) all my shares and stocks;

(iv) the real estate property, [address given]; and

(v) all my allocated Pensions;

These assets will go into a discretionary trust for the benefit of my son,…

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 Re Swain (Dawn)

Details

AGLC: Re Swain (Dawn) [2008] NSWSC 1343
Case: [2008] NSWSC 1343
Decision Date: 15 December 2008

CaseChat Overview and Summary

In the matter of the estate of the deceased, Dawn Swain, the plaintiff, an interested party, sought to rectify a codicil under section 29A of the Wills, Probate and Administration Act 1898. The dispute involved the interpretation and rectification of a codicil to the deceased's will, which altered the distribution of her estate. The case was heard in the Supreme Court of New South Wales.

The primary legal issue before the court was whether sufficient cause existed for the plaintiff's failure to apply for rectification in a timely manner. The court acknowledged the general principle that it is reluctant to order rectification of a will out of time, particularly when a grant of probate is an order in rem. However, the court also recognised that rectification of a will out of time could be justified if there was a strong reason for the delay. The court considered whether the testatrix's intention could be ascertained and whether the delay could be excused.

The court ultimately determined that the plaintiff had shown sufficient cause for the late application. The court found that the delay could be excused based on the facts of the case, including the circumstances surrounding the making of the codicil and the efforts made by the plaintiff to rectify the will. The court also considered how the testatrix's intention should have been expressed in the codicil and whether the rectification would accurately reflect her wishes. The court concluded that rectification was warranted to correct the errors in the codicil and ensure that the testatrix's intentions were properly carried out.

The court ordered the codicil to be rectified to reflect the testatrix's true intentions, allowing the plaintiff to proceed with the administration of the estate according to the corrected will. The court emphasised the importance of considering the circumstances of each case when deciding whether to permit a late application for rectification and highlighted the need for careful drafting of codicils to avoid potential disputes.

Orders