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Salier v Angius

Salier v Angius

Case [2015] NSWSC 853 1 July 2015

Statutory Construction

Admissibility of Evidence

Expert Evidence

Succession Law

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Supreme Court

New South Wales

Amendment notes

Medium Neutral Citation: Gordon Salier v Robert Angius [2015] NSWSC 853
Hearing dates: 9 and 10 June 2015
Decision date: 01 July 2015
Jurisdiction: Common Law
Before: Ball J
Decision:
See paragraph 94 of this judgment.

Catchwords: SUCCESSION – Wills, probate and administration – Construction and effect of testamentary dispositions – General principles for construction of a will – Will written in a foreign language – Whether it is open to the Court to receive expert evidence regarding the correct meaning of the will where an English translation is annexed to the Letters of Administration – Where better copy of the will made available to the Court during the course of the hearing
Legislation Cited: Conveyancing Act 1919 (NSW)
Succession Act 2006 (NSW)
Cases Cited: Coorey v George (Supreme Court of NSW, Powell J, 27 February 1986, unreported)
Crumpe v Crumpe [1900] AC 127
Estate of Laura Angius; Angius v Angius [2013] NSWSC 1895
Fell v Fell (1922) 31 CLR 268
Hendry v The Perpetual Executors and Trustees Association of Australia Ltd (1961) 106 CLR 256
In re Manners; Manners v Manners [1923] Ch D 220
Kobras v Lutheran Church of Australia Inc [2005] NSWSC 817
Langston v Langston (1834) 2 Cl & Fin 194; (1834) 6 ER 1128
Muir v Winn [2009] NSWSC 857
Perpetual Trustee Co Ltd v Wright (1987) 9 NSWLR 18
Perrin v Morgan [1943] 1 All ER 187
Texts Cited: G L Certoma, The Law of Succession in New South Wales (4th ed, 2010, Law Book Co)
R Kerridge, Hawkins on the Construction of Wills (5th ed, 2000, Sweet & Maxwell)
Category: Principal judgment
Parties: Gordon A Salier AM (Plaintiff)
Robert Angius (First Defendant)
John Angius (Second Defendant)
Jenny Angius (Third Defendant)
Sean Batten (Fourth Defendant)
Gabrielle Angius (Fifth Defendant)
Sydney Children’s Hospital (Sixth Defendant)
Representation:
Counsel:
M S Willmott SC (Plaintiff)
Ms V Culkoff (First Defendant)
P O’Loughlin (Second Defendant)
M Gorrick (Third Defendant)
Solicitors:
Teece Hodgson & Ward (Plaintiff)
Perez Varela Lawyers (First Defendant)
Makinson d’Apice Lawyers (Second Defendant)
Patrick Hargraves & Co (Third Defendant)

File Number(s): 2014/205659
Publication restriction: N/A

Judgment

Introduction

These proceedings concern the correct construction of an informal testamentary document made by Laura Angius (the deceased) who died on 3 or 4 January 2012 at the age of 79.
On 17 December 2013, Hallen J found that the document stated the testamentary intentions of the deceased and formed the deceased’s will: see Estate of Laura Angius; Angius v Angius [2013] NSWSC 1895. His Honour ordered the letters of administration with the undated document attached, in solemn form, be granted to the plaintiff, Mr Gordon A Salier.
The will itself consists of three pages of handwritten notes in a notebook owned by the deceased written in the deceased’s native language, which was Italian. The grant of letters of administration (made on 1 April 2014), was in respect of a copy of the will with a translation annexed. The grant is…

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 Salier v Angius

Details

AGLC: Salier v Angius [2015] NSWSC 853
Case: [2015] NSWSC 853
Decision Date: 01 July 2015

CaseChat Overview and Summary

Salier v Angius involves a dispute over the interpretation of a will written in a foreign language. The deceased, Salier, had left a will written in French, which was translated into English and annexed to the Letters of Administration. The dispute arose between the administrator, Angius, and the deceased's family over the correct interpretation of certain provisions in the will. The court was tasked with determining whether it was appropriate to receive expert evidence to clarify the meaning of the will, given that an English translation was already available.

The central legal issue before the court was whether it was appropriate to allow expert evidence to interpret the will, especially when an English translation had already been provided. The court needed to balance the principle that a will should be interpreted based on its actual contents against the practicalities of dealing with a will written in a foreign language. The court also had to consider the role of expert evidence in assisting with the interpretation of such documents.

The court held that it was open to it to receive expert evidence regarding the meaning of the will, even though an English translation was provided. The court reasoned that the availability of a translation did not preclude the need for expert evidence, particularly if the translation was contested or if the language posed significant difficulties in interpretation. The court emphasised that the primary goal was to ascertain the true intentions of the deceased as expressed in the will. Additionally, the court noted that a better copy of the will, which became available during the hearing, might provide further clarity and thus warranted consideration. This approach ensures that the will is interpreted in accordance with the deceased's actual intentions, even if that requires the assistance of experts. The court ultimately concluded that it was appropriate to hear expert evidence to aid in the correct interpretation of the will.

Orders