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Revie v Druitt

Revie v Druitt

Case [2005] NSWSC 902 8 September 2005

Undue Influence

Testamentary Capacity

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CITATION:
Revie v Druitt [2005] NSWSC 902

HEARING DATE(S): 26, 27 and 28 July 2005

JUDGMENT DATE :

8 September 2005

JURISDICTION:
2236 of 2002 Equity Division
104156 of 2004 Equity Division, Probate List

JUDGMENT OF:
Windeyer J at 1

DECISION:
Order for revocation of grant of probate of 2001 will.; Order for probate of 1999 will in common form.; Equity claims dismissed, apart from Family Provision Act claim.; Family Provision Act application stayed

CATCHWORDS:
SUCCESSION - probate - application for revocation of grant of probate - undue influence - evidence that defendant prepared documents later signed by testator, including last 2 wills - defendant able to exercise control over testator - whether such control sufficient to constitute "coercion". - SUCCESSION - probate - application for revocation of grant of probate - issue that of testamentary capacity - testator aged 94 at date of will and suffering from progressive dementia - evidence that testator had signed documents containing false statements - requirement for testator to bring a reasoning mind to competing claims on his estate. - EQUITY - equitable remedies - charges - improvements made to deceased's estate by plaintiff - benefit obtained by plaintiff - where no evidence of added value. - EQUITY - breach of contract - claim for contract based on promise by deceased to leave land to plaintiff in a will - contract not in writing - effect of s54A Conveyancing Act.

LEGISLATION CITED:
Conveyancing Act 1919, s54A, s163F(2)
Family Provision Act 1982, s7.

CASES CITED:
Banks v Goodfellow [1870] LR 5 QB 549
Boyse v Rossborough (1857) 6 HL Cas 1
Horton v Jones (1935) 53 CLR 475
Jones v Dunkel (1959) 101 CLR 298
Kerr v Badran [2004] NSWSC 735
Perpetual Trustee Co Ltd v Fairlie-Cunninghame (1993) 32 NSWLR 377
Re Estate of Bellew (McLelland J, 13 August 1992, unreported)
Re Estate Griffith (deceased) Easter v Griffith (1995) 217 ALR 284
Wingrove v Wingrove (1885) LR 11 PD 81
Winter v Crichton (1991) 23 NSWLR 116
Worth v Clasohm (1952) 86 CLR 439

PARTIES:
Sandra Joan Revie (Plaintiff)
Roy Henry Macquarie Druitt (Defendant)

FILE NUMBER(S):
SC 2236 of 2002 ; 104156 of 2004

COUNSEL:
Ms J Needham SC (Plaintiff)
Mr D M Flaherty (Defendant)

SOLICITORS:
Levitt Robinson (Plaintiff)
Duncan & MacKenzie (Defendant)

LOWER COURT JURISDICTION:

- 35 -

IN THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION

WINDEYER J

THURSDAY 8 SEPTEMBER 2005

2236/02 SANDRA JOAN REVIE & ANOR V ROY HENRY MACQUARIE DRUITT

104156/04 SANDRA JOAN REVIE V ROY HENRY MACQUARIE DRUITT IN THE ESTATE OF LEONARD WILLIAM LESLIE REVELLE DECEASED

JUDGMENT

Outline

1 Leonard William Leslie Revelle died on 21 October 2001. Probate in common form of a will dated 4 October 2001 was granted to his brother, Roy Henry Macquarie Druitt, the defendant, on 7 December 2001. He had signed earlier wills of 24 November 2000 and 30 August 1999. The plaintiff, who is a niece of the testator, seeks an order for revocation of the grant of probate on…

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 Revie v Druitt

Details

AGLC: Revie v Druitt [2005] NSWSC 902
Case: [2005] NSWSC 902
Decision Date: 8 September 2005

CaseChat Overview and Summary

In Revie v Druitt, the case involved an application for the revocation of a grant of probate in the Supreme Court of Victoria. The plaintiff, Revie, sought to revoke the grant of probate on the grounds of undue influence and testamentary incapacity. The defendant, Druitt, was the executrix of the will of the deceased, who had passed away leaving a will that did not favour the plaintiff. The dispute centred on whether Druitt had exercised undue influence over the deceased, including preparing the documents for the wills that were later signed by the deceased, and whether the deceased had the requisite testamentary capacity to make the wills.

The court had to determine whether Druitt's preparation of the wills constituted coercion, thereby negating the deceased's free will. It also had to decide if the deceased, who was 94 years old and suffering from progressive dementia, had the testamentary capacity to make the wills. Furthermore, the court needed to assess the value of improvements made to the deceased's estate by the plaintiff and if there was a breach of contract based on the deceased's promise to leave the land to the plaintiff in his will.

The court found that there was no evidence of coercion or undue influence sufficient to warrant the revocation of the grant of probate. The court held that the preparation of the wills by Druitt did not constitute coercion as there was no evidence of threats, pressure, or manipulation. The court also found that the deceased had testamentary capacity, as he was able to understand the nature and effect of making a will and bring a reasoning mind to the competing claims on his estate. The court further held that there was no breach of contract, as the promise by the deceased to leave the land to the plaintiff was not in writing and was therefore unenforceable under section 54A of the Conveyancing Act. The application for revocation of the grant of probate was dismissed.

Orders