The Public Trustee v Ferguson - [2024] TASSC 26

[2024] TASSC 26

COURT:	SUPREME COURT OF TASMANIA
CITATION:	The Public Trustee v Ferguson and anor [2024] TASSC 26
PARTIES:	THE PUBLIC TRUSTEE
v
FERGUSON, Natasha
CONNORS, Geoffrey
FILE NO:	2798/2023
DELIVERED ON:	23 May 2024
DELIVERED AT:	Hobart
HEARING DATE:	20 February 2024
JUDGMENT OF:	Brett J
CATCHWORDS:

Succession – Making of a will – Execution – Informal document intended to be a will – No reasonable doubt maker intended document as will – whether altered will is document purporting to embody the testamentary intentions and intended to constitute a will – deliberate decision to remove residuary gift to granddaughter – satisfied beyond reasonable doubt that document was intended to constitute will.

Aust Dig Succession [1064]

Succession – Probate and letters of administration – Grants of probate and letters of administration – To whom probate granted – Generally – Whether court satisfied that will is valid – Grant of probate in solemn

form.

Aust Dig Succession [1087]

Legislation:

Wills Act 2008, s8, s10.

Cases:

Estate Kouvakas; Lucas v Konakas [2014] NSWSC 786
In the will of Wilson [1898] VicLawRp 39, (1897) 23 VLR 197
McFadyen v Bluett [2017] TASSC 72

Timbury v Coffee [1941] HCA 22, 1941 66 CLR 277

REPRESENTATION:

Counsel:

Appellant: D Deayton
Respondent: No Appearance

Solicitors:

Appellant: Murdoch Clarke

Respondent: Judgment Number:	No Appearance
[2024] TASSC 26
Number of paragraphs:	20

Serial No 26/2024 File No 2798/2023

THE PUBLIC TRUSTEE v NATASHA FERGUSON and GEOFFREY CONNORS

REASONS FOR JUDGMENT

BRETT J
23 May 2024

1            This application relates to the estate of Rosemary Connors, who died on either 13 or 14 November 2022. Mrs Connors was aged 74 years at the time of her death.
2            Mrs Connors' estate consists almost exclusively of the estate of her late husband, who passed away in 1990. He left all of his estate to her.
3             In 2008 Mrs Connors made a will with the assistance of the applicant. The applicant was appointed as the sole executor of the will, and has retained possession of it. The will provides for some specific bequests to family members and charities, and leaves the residue in four equal parts, three to her children and the fourth shared equally between two of her grandchildren, who are the respondents to this application. They are both over 18 years of age. It appears from information provided to me that she had at least two other grandchildren.
4 The said will appears to have been correctly executed in accordance with the requirements of s 8 of the Wills Act 2008. I can therefore proceed on the basis that the usual presumptions concerning validity arise in repect of that will. In particular, I can assume that the testatrix had adequate capacity to make the will at the time of its execution. See cases referred to by me in McFadyen v Bluett [2017] TASSC 72 at 39.
5            Subsequent to Mrs Connors' death, the applicant came into possession…

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 The Public Trustee v Ferguson

Details

AGLC: The Public Trustee v Ferguson [2024] TASSC 26
Case: [2024] TASSC 26
Decision Date: 23 May 2024

CaseChat Overview and Summary

In the case of The Public Trustee v Ferguson, the court was called upon to determine the validity of a document intended as a will, which had been altered by the removal of a residuary gift to the maker’s granddaughter. The dispute centred around whether the altered document could still be considered the maker’s will, reflecting their testamentary intentions. The court was tasked with deciding whether the document, despite its alterations, was still a valid expression of the maker’s final wishes.

The key legal issues revolved around the requirements for the execution of a valid will under Australian law, specifically focusing on whether the alterations to the document negated its status as a will. The court had to determine whether there was any reasonable doubt that the document was intended by the maker to be their will, and if the alterations were such that they could still be considered the embodiment of the maker’s testamentary intentions. Additionally, the court examined whether the removal of the residuary gift to the granddaughter was deliberate and whether it could be proven beyond reasonable doubt that the altered document was still intended to constitute a will.

The court found that the alterations to the document did not negate its status as a will, provided there was no reasonable doubt that the maker intended the document to be their will. The court was satisfied beyond reasonable doubt that the document, despite the removal of the residuary gift, was still intended by the maker to embody their testamentary intentions. The deliberate decision to remove the residuary gift did not undermine the document’s validity as a will, as long as the maker’s intention to constitute the document as a will remained. The court concluded that the altered document could still be considered the maker’s will, reflecting their testamentary intentions.

The final orders of the court recognised the altered document as the valid will of the maker, confirming the legal standing of the document despite the alterations. The court’s decision affirmed that the testamentary intentions of the maker were still embodied in the document, and the alterations did not prevent it from being considered a valid will.

Orders