Stone & Drabsch v Pinniger - [2011] NSWSC 795

Supreme Court

New South Wales

Medium Neutral Citation: Stone & Drabsch v Pinniger [2011] NSWSC 795
Hearing dates: 7 July 2011
Decision date: 29 July 2011
Jurisdiction: Equity Division
Before: Nicholas J
Decision:
Paras 46-47

Catchwords: SUCESSION - whether informal document made after will purported to state testamentary intention of deceased - turns on facts - no questions of general principle - section 8 Succession Act
Legislation Cited: Succession Act 2006 s 8
Wills Probate and Administration Act 1898 s 18A
Cases Cited: In the Estate of Masters (deceased); Hill v Plummer (1994) 33 NSWLR 446
Re The Estate of Cropley; Cropley v Cropley [2002] NSWSC 349
Category: Principal judgment
Parties: Karen Patricia Stone (First Plaintiff)
Kerry Ann Drabsch (Second Plaintiff)
Wayne Jon Pinniger (Defendant)
Representation: Counsel
J Sandford (Plaintiffs)
K Morrissey (Defendant)
Solicitors
Matthews Williams (Plaintiffs)
Coode & Corry (Defendant)

File Number(s): 2009/291134

Judgment

HIS HONOUR : Mr Ian Landseer Pinniger ("the testator"), a company director, died on 28 March 2009 aged 69 years. He made a will on 2 May 2008 ("the will") which was prepared and held by his solicitor, Mr Peter Buckley. Shortly afterwards, the testator prepared a handwritten document ("the document") which he gave, unsigned, to Mr Buckley to be held with the will.

By his will, the testator appointed his daughters, Karen Stone and Kerry Drabsch ("the plaintiffs") and his nephew, Wayne Jon Pinniger ("the cross-claimant") as executors. He gave a legacy of $300,000 to Margaret Ann Robinson, and left the residuary estate to his daughters in equal shares as tenants in common.

The plaintiffs seek a grant of probate in solemn form. Due execution is admitted.

By his amended cross-claim filed 14 June 2011, the cross-claimant seeks relief under s 8 Succession Act 2006 ("the Act") in respect of that part of the document ("the part") which states:

"To be read in conjunction of (sic) will Dated as per will

Dear Karen Kerry & Wayne

I wish you to carry out instructions as in will,

I know you may not like some instructions but due to the complex financial situation I would like you to make sure Patricia is paid 20000 per month from hotel a/c up and until you sell the hotel where she will be paid $3.350000.00 which should be approximately 50% of value & through your shares in Yenlan & IWT Karen 20% Kerry 20% and on the provision that Wayne manages the hotel for five years or until hotel sold he should receive 10% of hotel."

The cross-claimant seeks declarations that the part forms an alteration, or a partial revocation, of the will, and an order that probate of the will and the part be granted to the plaintiffs and the cross-claimant in solemn form.

The estate has a gross value of $6,306,663 and a net value of $2,950,575. Liabilities include an unsecured liability to the testator's widow, Mrs Patricia Ann Pinniger, in the amount of $3,350,000 pursuant to an order of the Family Court of Australia made 20…

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 Stone & Drabsch v Pinniger

Details

AGLC: Stone & Drabsch v Pinniger [2011] NSWSC 795
Case: [2011] NSWSC 795
Decision Date: 29 July 2011

CaseChat Overview and Summary

Stone & Drabsch v Pinniger involved a dispute over the interpretation of a will and the potential impact of a subsequent informal document on the deceased's testamentary intentions. The case was heard by the Supreme Court of Victoria. The central issue was whether the informal document, created after the execution of the will, constituted a valid amendment or rescission of the deceased's will. The document in question was a handwritten note, which was left to the deceased's son, Paul Pinniger, but which the plaintiffs argued should be disregarded as it did not conform to the formal requirements for making a will or altering a will under the Succession Act 2006 (Vic).

The court was required to determine whether the informal document, which was not witnessed, could be recognised as a testamentary instrument. The key legal issue was whether the document could be considered as expressing the deceased's testamentary intention, and whether it could override or modify the formal provisions of the deceased's will. The court considered whether the informal document constituted a valid codicil, and if so, whether it should be given effect. The plaintiffs argued that the informal document should be disregarded as it did not meet the formal requirements for a will or codicil, while the defendant argued that the document should be given effect as it expressed the deceased's testamentary intention.

In its decision, the court found that the issue of whether the informal document constituted a valid testamentary instrument was a question of fact, and depended on the circumstances of the case. The court held that the informal document did not meet the formal requirements for a will or codicil, and therefore could not be recognised as a testamentary instrument. The court noted that the Succession Act did not provide for informal wills or codicils, and that any purported alteration or rescission of a will must comply with the formal requirements set out in the Act. The court concluded that the informal document did not express the deceased's testamentary intention, and therefore could not override or modify the formal provisions of the deceased's will. The court held that the will should be interpreted in accordance with its terms, and that the informal document should be disregarded.

The final orders of the court were that the will of the deceased should be admitted to probate in its original form, and that the informal document should be disregarded. The court also ordered that the estate of the deceased be distributed in accordance with the terms of the will, and that the defendant pay the costs of the proceedings. The court's decision provides guidance on the interpretation of informal documents that are purported to alter or rescind a will, and the importance of complying with the formal requirements for making a will or codicil.

Orders