ANDREW JOHN SIMPSON (in his capacity as executor of the deceased's Will)	Plaintiff
v
SARAH LOUISE CUNNING (by her litigation guardian WENDY CUNNING)	Defendant

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JUDGE:	HARGRAVE J
WHERE HELD:	Melbourne
DATE OF HEARING:	2 August 2011
DATE OF JUDGMENT:	22 September 2011
CASE MAY BE CITED AS:	Simpson v Cunning
MEDIUM NEUTRAL CITATION:	[2011] VSC 466

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WILLS – Ademption – Subject matter of gift in will sold by attorney – Testatrix incapacitated and ignorant of sale – Whether gift adeemed by sale – Held: gift not adeemed – Re Viertel [1997] 1 Qd R 110 followed and extended – Recommendation for law reform.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr A J Verspaandonk	Moores Legal
For the Defendant	Mr P A Cassidy	Lawson Hughes Peter Walsh Lawyers

TABLE OF CONTENTS

Parties and introduction.................................................................................................................... 2

Has the gift of the house been adeemed?...................................................................................... 6

HIS HONOUR:

Parties and introduction

Muriel Rhae Creswell (‘the deceased’) died on 20 October 2009, aged 78 years. She left a will made on 24 March 1998. The deceased was survived by her three children and six grandchildren.

By her will, the deceased gave her house to her son, Mark Cunning, or, if he predeceased her or died within 30 days of her death, to his children in equal shares. She made other specific bequests to her children. She gave her residuary estate to her grandchildren in equal shares.

In July 2003, the deceased engaged the plaintiff, Andrew Simpson, a solicitor specialising in probate and related legal issues, and by codicil prepared by him appointed him as executor under her will. No other changes were made to the will.

From 2004, the deceased’s general practitioner noticed problems with the deceased’s mental state and a history of falling. Commencing in late 2005 or early 2006, the GP made a concerted effort to convince the deceased that it was no longer safe for her to continue living at home on her own. However, the deceased was reluctant to move.

During 2006 the deceased became confused about taking her medications.

In September 2006, the deceased’s carer contacted the GP regarding difficulties which the deceased was having in managing her financial affairs.

By 1 November 2006, the deceased’s physical and cognitive health was failing. In these circumstances, Mr Simpson attended at her house to discuss her making a new power of attorney. During this meeting, Mr Simpson learned that the deceased’s neighbour was attending to payment of her bills and she was happy for that to continue. Further, Mr Simpson received instructions to prepare a power of attorney in favour of himself and two of his partners in legal practice on a joint and several basis. Only the plaintiff has acted pursuant to that power of attorney. Finally, at…

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 Simpson v Cunning

Details

AGLC: Simpson v Cunning [2011] VSC 466
Case: [2011] VSC 466
Decision Date: 22 September 2011

CaseChat Overview and Summary

Simpson v Cunning was a case heard in the Queensland Supreme Court, where the central issue was whether a gift in a will was adeemed by the sale of the subject matter by an attorney during the testatrix's incapacitation. The testatrix, who was unable to comprehend the sale due to her incapacitated state, had bequeathed specific assets to her grandchildren. The attorney in charge of her estate sold these assets without her knowledge. The court was tasked with determining whether this sale rendered the bequests adeemed, effectively nullifying the gifts.

The court addressed whether the sale by the attorney, who was acting during the testatrix's incapacity and without her knowledge, constituted a valid transfer of the bequeathed assets. It examined the principle of ademption, which occurs when a specific gift in a will is no longer part of the estate due to its prior disposition. The court also considered the authority of Re Viertel [1997] 1 Qd R 110, which established that gifts are not adeemed by actions taken by attorneys during the testatrix's incapacity, provided the testatrix was unaware of these actions. The court's decision hinged on whether these precedents applied to the facts of this case.

In delivering its judgment, the court followed the precedent set in Re Viertel, extending its reasoning to the current case. It found that the gifts were not adeemed because the testatrix was unaware of the sale and the attorney acted within the scope of their authority. The court underscored the importance of the testatrix's knowledge and consent in determining whether a gift is adeemed. Additionally, the court recommended a review of the relevant laws to ensure clarity and to prevent future disputes over similar issues.

The court ordered that the sale by the attorney did not result in the adeeming of the gifts. Consequently, the grandchildren were entitled to the assets as originally bequeathed by the testatrix. The court also suggested legislative reform to address the complexities and potential ambiguities in the current legal framework regarding gifts in wills and the actions of attorneys during a testatrix's incapacity.

Orders