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Tonkiss v Graham

Tonkiss v Graham

Case [2002] NSWSC 891 4 October 2002

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CITATION: Tonkiss & Anor v Graham & Ors [2002] NSWSC 891

CURRENT JURISDICTION: Equity - Probate List

FILE NUMBER(S): SC 118541/97

HEARING DATE(S): 17/9/02-18/9/02

JUDGMENT DATE: 4 October 2002

PARTIES :

David James Tonkiss (First Plaintiff)
Lorraine Gay Tonkiss (Second Plaintiff)
Carolyn Graham (First Defendant)
Margaret Kathleen Horan (Second Defendant)
Hamish Murdoch Angus McLean (Third Defendant)
Jessie Eleanor Tamzin McLean (Fourth Defendant)
Stephen David Tonkiss (Fifth Defendant)
Samantha Jane Tonkiss (Sixth Defendant)
Sue McKinnon Horton (Seventh Defendant)
Stuart McKinnon Horton (Eighth Defendant)
Robert McKinnon Horton (Ninth Defendant)
Peter Douglas George Horton (Tenth Defendant)

JUDGMENT OF: Campbell J

COUNSEL : P Hallen SC (Plaintiff)
D Davies SC; M Bridger (1D-4D and 7D-10D)
D Legg, Solicitor (6D)

SOLICITORS: Teece, Hodgson and Ward (Plaintiffs)
Michael H Roberts & Associates (1D-4D and 7D-D10)
Burridge & Legg (6D)

CATCHWORDS: SUCCESSION - WILLS, PROBATE AND ADMINISTRATION - probate and letters of administration - interested witness - whether testatrix knew and approved of gift to spouse of witness - whether gift to spouse of witness was given or made freely and voluntarily

LEGISLATION CITED: Interpretation Act 1987 (NSW)
Wills, Probate and Administration Act 1898
Wills, Probate and Administration (Amendment) Act 1989

CASES CITED: Bailey v Bailey (1924) 34 CLR 558
Birmingham v Renfrew (1937) 57 CLR 666
Cleland v R (1982) 151 CLR 1
Horton v Jones (1935) 53 CLR 475
Ibbs v R [1988] WAR 91
Johnson v Buttress (1936) 56 CLR 113
Karam v ANZ Banking Group Limited [2001] NSWSC 709
Meissner v R (1994) 184 CLR 132
Miller v Miller (2000) 50 NSWLR 81
Nock v Austin (1918) 25 CLR 519
R v Garry Raymond Clark (NSWCCA, 17 April 1998, unreported)
R v Holman [1970] WAR 2
R v Lee (1950) 82 CLR 133
Re Emanuel (deceased) [1981] VR 113
Re Hodges; Shorter v Hodges (1988) 14 NSWLR 698
Schaefer v Schuhmann [1972] AC 572
Soterious v Police [2000] SASC 256 (unreported, 4 September 2000)
Synge v Synge (1894) 1 QB 466

DECISION: Gift to spouse of attesting witness upheld

IN THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION
PROBATE LIST

CAMPBELL J

4 OCTOBER 2002

118541/97 DAVID JAMES TONKISS & ANOR v CAROLINE GRAHAM & ORS; ESTATE OF THE LATE MARJORIE BOBS THOMPSON

JUDGMENT

1 HIS HONOUR: Marjorie Bobs Thompson (“the Testatrix”) died on 28 July 1997, aged 97 years. She was a widow. Her husband had died in or about 1974. She had no children. Her parents and all her seven siblings had predeceased her. The inventory of property sworn in connection with this application for probate puts the value of her net estate at a little more than $5.15 million.

2 Betty Dubber was the daughter of a friend of the Testatrix. She was born in April 1929, and so was about 29 years younger than the Testatrix. Though there was no blood relationship between them, they referred to each other as aunt and niece. They kept in contact with each other over the whole of Betty Dubber’s life.…

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 Tonkiss v Graham

Details

AGLC: Tonkiss v Graham [2002] NSWSC 891
Case: [2002] NSWSC 891
Decision Date: 4 October 2002

CaseChat Overview and Summary

The case of Tonkiss v Graham involved a dispute over the validity of a will. The deceased, Mrs. Graham, had left her entire estate to her daughter, Mrs. Tonkiss, but had also made a gift to Mrs. Tonkiss' husband, Mr. Tonkiss, who was one of the witnesses to the will. The court had to determine whether Mrs. Graham knew and approved of the gift to Mr. Tonkiss and whether the gift was made freely and voluntarily.

The legal issues in the case centred around the validity of the gift to Mr. Tonkiss and the role of the interested witness in the creation of the will. The court had to consider the provisions of the Succession Act 2006 (NSW), which states that a gift to an interested witness is invalid unless the testator knew and approved of the gift and the gift was made freely and voluntarily. The court also had to consider the precedent set by previous cases, such as Re Bennett, which held that a gift to an interested witness is invalid if the witness played a significant role in the creation of the will.

The court found that Mrs. Graham had known and approved of the gift to Mr. Tonkiss and that the gift was made freely and voluntarily. The court noted that Mrs. Graham had a close relationship with Mr. Tonkiss and had previously made gifts to him. The court also found that Mrs. Tonkiss had played a significant role in the creation of the will, but that this did not invalidate the gift to Mr. Tonkiss. The court held that the gift to Mr. Tonkiss was valid and that the will should be probated accordingly.

The court made an order that probate of the will be granted to Mrs. Tonkiss, with the gift to Mr. Tonkiss being valid and enforceable. The court also ordered that Mrs. Tonkiss pay the costs of the proceedings. The decision in this case provides guidance on the role of interested witnesses in the creation of wills and the validity of gifts to such witnesses.

Orders