(1) Orders that the amended Statement of Claim filed on 11 October 2021 be dismissed.
(2) Stands the matter over to a date to be fixed to determine costs.
Catchwords:
SUCCESSION – The deceased died leaving duly executed Will probate of which was granted to the Defendant, one of two adult children of the deceased – Plaintiff received 25 per cent share, whilst Defendant received 75 per cent share, of the deceased’s estate – Clause giving power of appropriation to the executor in Will – Construction and effect of the appropriation Clause – Whether Defendant entitled to acquire the Plaintiff’s interest in the estate – Whether dispute as to valuation of the property forming part of the estate – No competing valuation evidence given by the Plaintiff – Alleged difference in value of the property would have resulted in Plaintiff, on her case, being entitled to receive an additional amount less than $50,000 than the amount paid to, but not retained by, Plaintiff.
Legislation Cited:
Duties Act 1997 (NSW) ss 8(1), 11(1)(a), 12(1), 13, 19, 21(1), 32 and 63(1)(a)(iii)
ANZ Executors & Trustee Co Ltd v McNab [1999] 3 VR 666
Bluemine Pty Ltd (in liq) v AKA (Civil) Pty Ltd; Earth Civil Australia Pty Ltd (in liq) v AKA (Civil) Pty Ltd; Diamondwish Pty Ltd (in liq) v Ivana Cassaniti; Rackforce Pty Ltd (in liq) v Ivana Cassaniti; RCG CBD Pty Limited (in liq) v Borg Family Pty Ltd [2022] NSWCA 160
Liang Pui Saw Kian v Leung Yuk Chun [2016] HKCFI 1014
Long v Comptroller of Stamps [1964] VR 796
Lystra Allison Tagliaferri as Administrator of the Estate of David Eugenio Tagliaferri v Lystra Allison Tagliaferri and Lisa Dianna Sawyer as Trustees for Hayley Beatrice Tagliaferri and Caitlyn Thelma Tagliaferri [2013] WASC 321
[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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AGLC
Ross v Sebek [2022] NSWSC 1300
Case
[2022] NSWSC 1300
Decision Date
CaseChat Overview and Summary
In the case of Ross v Sebek, the plaintiff, Ross, appealed against the decision of the Supreme Court of New South Wales, which dismissed her claim. The dispute involved the interpretation of a clause in the will of the deceased, which granted the executor, the defendant Sebek, the power of appropriation. Ross, one of the deceased's children, contested the defendant's entitlement to acquire her interest in the estate under the appropriation clause. Additionally, there was a contention regarding the valuation of a property included in the estate, though Ross did not provide any competing valuation evidence.
The court was tasked with determining the true meaning and effect of the appropriation clause in the will, specifically whether it allowed the executor to acquire the plaintiff's interest in the estate. The court also needed to resolve the valuation dispute, albeit with limited evidence from the plaintiff. The court examined the language of the appropriation clause and the context in which it was written, considering the intentions of the deceased and the role of the executor as defined in the will.
The court held that the appropriation clause did not permit the executor to acquire the plaintiff's interest in the estate, as the clause's wording did not support such a power. Furthermore, the court determined that there was insufficient evidence to support the plaintiff's claim regarding the property's valuation, as she did not provide any alternative valuation to counter the executor's assessment. Consequently, the court upheld the dismissal of the plaintiff's claim and confirmed the executor's entitlement to retain the full 75 per cent share of the estate as per the will.
The court ordered that the plaintiff's appeal be dismissed and that the defendant retain the full 75 per cent share of the deceased's estate, as per the will and the court's interpretation of the appropriation clause.