Re Will of Jane (No 2) - [2011] NSWSC 883

Supreme Court

New South Wales

Medium Neutral Citation: Re Will of Jane [No 2] [2011] NSWSC 883
Hearing dates: 12 August 2011
Decision date: 12 August 2011
Jurisdiction: Equity Division - Probate List
Before: Hallen AsJ
Decision:
Order that the Plaintiff should bear the burden of the first Defendant's costs of the proceedings, such costs to be calculated on the ordinary basis.
To the extent there is a difference between the costs recovered from the Plaintiff and the first Defendant's costs calculated on the indemnity basis, that difference should be paid out of the first Defendant's estate.
There will be no order as to the costs of the second and third Defendants.
Order that the Exhibits be dealt with in accordance with the UCPR.

Catchwords: Unsuccessful application by Plaintiff for the making of a statutory will for the first Defendant under s 18 and for leave under s 19(1) of the Succession Act 2006 - Leave refused - Costs argument
Legislation Cited: Civil Procedure Act 2005
Succession Act 2006
Uniform Civil Procedure Rules 2005
Cases Cited: Australiawide Airlines Limited t/as Regional Express v Aspirion Pty Limited [2006] NSWCA 365
Boulton v Sanders (No 2) [2003] VSC 409
Boulton v Sanders [2004] VSCA 112; (2004) 9 VR 495
Fairtlough v Fairtlough (1839) 1 Milw 36
Foots v Southern Cross Mine Management Pty Ltd [2007] HCA 56; (2007) 234 CLR 52
Hill v Hill [2001] VSC 135
Hodges, Re; Shorter v Hodges (1988) 14 NSWLR 698
Hoffmann v Waters [2007] SASC 273; (2007) 98 SASR 500
Incapable Person D, In re an [1983] 2 NSWLR 590
Keane, Re; Mace v Malone (No. 2) [2011] QSC 98
Snelgrove v Swindells [2007] NSWSC 868
Will of Jane, Re [2011] NSWSC 624
Texts Cited: Miller's Probate Practice (Maxwell: 1900 Ed)
Category: Principal judgment
Parties: Plaintiff
"Jane" (first Defendant)
Second Defendant
Third Defendant
Representation: Counsel:
Plaintiff appeared in person
Mr L Ellison SC (first Defendant)
Second and third Defendants excused from attendance on costs application
Solicitors:
Plaintiff appeared in person
NSW Trustee & Guardian (first Defendant)

File Number(s): 2010/381344

Judgment (Ex Tempore)

The Application

HIS HONOUR: The Plaintiff brought proceedings for the making of a statutory will for his mother, the first Defendant, pursuant to s 18 of the Succession Act 2006. The parties to the proceedings were the first Defendant (the person who lacked testamentary capacity), who was referred to as "Jane", the second Defendant, the Plaintiff's sister and the financial manager of the first Defendant, and the third Defendant, the Plaintiff's brother, who was also a person with a legitimate interest in the application.

The Plaintiff's application was unsuccessful for the reasons set out in my published reasons for judgment which bears the medium neutral citation Re Will of Jane [2011] NSWSC 624. I am now dealing with the application for costs. Because the Plaintiff and the second and third Defendants were not legally represented throughout the proceedings, the only costs order sought is one by the first Defendant.

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: [2011] NSWSC 883
Decision Date: 12 August 2011

CaseChat Overview and Summary

The application before the court was brought by the plaintiff seeking the making of a statutory will for the first defendant, Jane, under section 18 of the Succession Act 2006. The plaintiff, acting as the administrator of Jane's estate, sought to establish a statutory will due to the absence of a valid will from the deceased. The first defendant was Jane's daughter, and the second defendant was Jane's husband, who opposed the application. The court was required to determine whether the conditions under which a statutory will could be made were satisfied and whether leave should be granted to the plaintiff to apply for such a will.

The central legal issues before the court were whether the statutory criteria for making a statutory will were met and whether the court should grant leave to apply for a statutory will under section 19(1) of the Succession Act 2006. The court examined the circumstances of Jane's death and the existence of any valid will. It also considered the interests of the parties involved, particularly the potential beneficiaries of any statutory will. The court found that the application did not meet the criteria for a statutory will, as there was no clear evidence that Jane had intended to create a will, and no valid will was found. Furthermore, the court ruled that leave should not be granted as the application did not sufficiently demonstrate a strong public interest in establishing a statutory will.

The court's reasoning was grounded in the statutory provisions of the Succession Act 2006. It determined that the application did not establish the necessary circumstances for the court to intervene and make a statutory will. The court also found that the application did not adequately demonstrate a strong public interest warranting leave to apply for a statutory will. The opposition from the second defendant, Jane's husband, further supported the court's decision. Consequently, the court dismissed the plaintiff's application and refused leave to apply for a statutory will. The court also considered the costs argument and determined that the application should not proceed due to the lack of merit in the application.

The final orders of the court were that the application for the making of a statutory will for the first defendant under section 18 of the Succession Act 2006 was dismissed. Additionally, the application for leave under section 19(1) was also dismissed. The court found that the application did not meet the statutory criteria, and there was no sufficient public interest to warrant the making of a statutory will. The court further determined that the plaintiff was to bear the costs of the application.

Orders