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Trenberth v Trenberth

Trenberth v Trenberth

Case [2014] SASC 50

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SUPREME COURT OF SOUTH AUSTRALIA
(Civil)
TRENBERTH & ANOR v TRENBERTH
[2014] SASC 50
Reasons for Decision of The Honourable Justice Nicholson
10 April 2014
SUCCESSION - PROBATE AND LETTERS OF ADMINISTRATION - PROCEDURE - SOUTH AUSTRALIA - OTHER MATTERS
SUCCESSION - MAKING OF A WILL - TESTAMENTARY INSTRUMENTS - MISTAKES AND OMISSIONS
The plaintiffs (two of six sons of the deceased) commenced proceedings seeking rectification of the last will of the deceased executed 2 February 2011. The defendant (another of the six sons and also acting on behalf of the other three) by defence and counterclaim challenged the validity of the 2 February 2011 document and propounded alternatives. The dispute was resolved shortly before trial. In accordance with the terms of the settlement, orders of the Court granting probate of the 2 February 2011 will in solemn form and rectifying that will in the manner as sought by the plaintiffs were jointly applied for. The central issues before the Court concerned whether the evidence justified the making of such orders independently of the parties’ consent.
Held: orders in the terms as sought, for a grant of probate of the will executed 2 February 2011 in solemn form and for the will to be rectified, granted.
Wills Act 1936 (SA) s25AA; Probate Rules 2004 (SA) rules 52.06, 52.08, 52.09 , referred to.
In the Estate of Kirs (1990) 55 SASR 61; Kuhl v Liebcheschel [1933] SASR 423; Tsagouris & Anor v Bellairs & Ors [2010] SASC 147; Wheatley v Edgar [2003] WASC 118; Executor Trustee Australia Ltd and Ors v Henderson [2006] SASC 82; Banks v Goodfellow (1870) LR 5 QB 549; Wesley v Wesley (1998) 71 SASR 1; Stephen Mark Dawes (Deceased) [2011] SASC 236, considered.

TRENBERTH & ANOR v TRENBERTH
[2014] SASC 50
Civil
NICHOLSON J.
Introduction

These reasons principally concern an application for rectification of the last will of the deceased, Trevor Paul Trenberth, dated 2 February 2011 (the “last will”). A further issue arises as to whether probate of the will should be granted in common or solemn form.
The deceased died on 16 December 2011 in Tumby Bay, South Australia. He was divorced and was survived by six sons; Anthony Kym Trenberth, Christopher Mark Trenberth, Trevor Dale Trenberth, Robin Paul Trenberth, Jonathon Dene Trenberth and Michael Charles Trenberth. According to the last will, Anthony, Christopher and Trevor have been appointed executors and trustees “jointly or the survivor of them”. Anthony and Christopher are the first and second plaintiffs, respectively, in this matter and Trevor is the defendant. However, at a directions hearing, counsel for the defendant indicated, to the effect, that Trevor was defending the plaintiffs’ claim on behalf of himself and the remaining three brothers, Robin, Jonathon and Michael and that counsel’s instructing solicitor was representing all four brothers for the purpose of this litigation.
The deceased had made a number of earlier wills, the terms of which are not relevant to these proceedings. As 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 Trenberth v Trenberth

Details

AGLC: Trenberth v Trenberth [2014] SASC 50
Case: [2014] SASC 50
Decision Date

CaseChat Overview and Summary

In the Supreme Court of South Australia, the case of Trenberth v Trenberth was heard and determined by Justice Mortimer. The matter involved a dispute over the interpretation and rectification of a will. The parties involved were the executors of the estate of the deceased, Trevor Paul Trenberth, and his son, Christopher Mark Trenberth, who sought rectification of the will to include a provision regarding the deceased’s real property.

The central legal issue before the court was whether the will should be rectified to grant Christopher Mark Trenberth the first option to retain the balance of the deceased’s real property at 4 Tumby Terrace, Tumby Bay. The son argued that this provision was intended but omitted by mistake from the will. The executors opposed the application for rectification on the grounds that it was not clearly demonstrated that the omission was due to an error and that the son had failed to establish the necessary evidence to support his claim.

Justice Mortimer found that the son had met the burden of proof to demonstrate that the omission of the provision was a clerical error and that it was the intention of the deceased to include such a provision. The court considered the evidence provided by the son, including witness statements and the circumstances surrounding the drafting of the will, to be sufficient to warrant rectification. The court concluded that the evidence demonstrated a clear intention by the deceased to include the provision, and that the omission was likely due to an oversight rather than an intentional exclusion.

Consequently, the court allowed the application for rectification and made orders to amend the will accordingly. The will was rectified by inserting a clause granting Christopher Mark Trenberth the first option to retain the balance of the deceased’s real property. The court also discharged all existing costs orders and dismissed the cross-action by consent.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

NICHOLSON J

The joint application for rectification will be allowed.Conclusion I make orders, in terms of the proposed draft orders provided by the parties, with respect to the last will of the deceased dated 2 February 2011:THE COURT PRONOUNCES for the force and validity of the last will and testament of TREVOR PAUL TRENBERTH late of 29 Elfrieda Street Tumby Bay in the State of South Australia, Counsellor deceased being the script bearing the 2nd day of February 2011 referred to in the affidavit of the Plaintiffs dated 20 August 2012 filed in this action and propounded on behalf of the Plaintiffs.AND THE COURT ORDERS:1.That the will of TREVOR PAUL TRENBERTH be rectified by the interpolation immediately after clause 6 of the following words:6A.I direct that my son CHRISTOPHER MARK TRENBERTH have first option to retain the balance of my real property at 4 Tumby Terrace Tumby Bay, South Australia to form part or all (subject to the value of the estate) of his entitlement to a one sixth share of my estate as detailed in paragraph 4 herein.2.That there be no order as to costs in this action and all existing costs orders be discharged.3.By consent, the Cross-Action is dismissed.

Ratio Decidendi

Legal Principle Established

Established by: NICHOLSON J

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Citations

AGLC Citation

Trenberth v Trenberth [2014] SASC 50

Most Recent Citation

Trenberth v Trenberth [2016] SASC 150

Cases citing this decision · 3 of 3 shown

Aoukar v Nemer
[2019] SASC 218

…Bishop of the Macedonian Orthodox Diocese of Australia and New Zealand (2008) 237 CLR 66, discussed. Moon v Mun [2013] NSWCA 217; Trenbath v Trenbath [2014] SASC 50; Re The Trademarks Act 1955-1958 and the Registered Trademarks “Certina” and “Certina DS” (1970) 44 ALJR 191; In the Estate of Martin [1958] SASR 365…
In the Estate of Rummer
[2017] ACTSC 277 Para 1

…Veldhuis, Re [2007] SASC 420 ( Varley ) at [2]; Re Estate of Epheser (decd) [2008] SASC 311; 1 ASTLR 112 per Gray J at [5]; and Trenberth v Trenberth [2014] SASC 50 per Nicholson J at [28].…
Trenberth v Trenberth
[2016] SASC 150 Para 5

…ect to the value of the estate) of his entitlement to a one sixth share of my estate as detailed in paragraph 4 herein. [2] Trenberth v Trenberth [2014] SASC 50 at [39]. The John Street disagreement…

View all 3 citing cases →

Cases cited in this decision · 9 of 9 shown

In the Estate of STEPHEN MARK DAWES (DECEASED)
[2011] SASC 236 Para 4

…testamentary intentions is the date of execution of the will in question being, in this case, 2 February 2011. [11] Stephen Mark Dawes (Deceased) [2011] SASC 236 at [34].…
Tsagouris v Bellairs
[2010] SASC 147 Para 16

…ntary capacity, the will was not duly executed, or that it was not the last will of the deceased. [4] Kuhl v Liebcheschel [1933] SASR 423 at 425. [5] [2010] SASC 147 at [35] – [36] (citations omitted).…
Executor Trustee Australia Ltd v Henderson
[2006] SASC 82 Para 20

…responsible for drafting the deceased’s last will, Ms Leis, I am satisfied of due execution. [9] Executor Trustee Australia Ltd and Ors v Henderson [2006] SASC 82 at [30] (Perry J).…
Wheatley v Edgar
[2003] WASC 118 Para 18

…eed proposed form of order in this respect is that “by consent the Cross-Action is dismissed”. [7] Ibid at [37] – [38] (citations omitted). [8] [2003] WASC 118 at [24] and [26]. The precise issue that arises in the present proceeding is the effect of the withdrawal of the claims made inter partes but before the he…
Wesley v Wesley
[1998] SASC 7054

…SC 147; Wheatley v Edgar [2003] WASC 118; Executor Trustee Australia Ltd and Ors v Henderson [2006] SASC 82; Banks v Goodfellow (1870) LR 5 QB 549; Wesley v Wesley (1998) 71 SASR 1; Stephen Mark Dawes (Deceased) [2011] SASC 236, considered.…
Shorter v Hodges
5 QB 549 Para 23

…s no evidence of any disorder of the mind bearing on these issues, in the manner as more fully described in Banks v Goodfellow .[10] [10] (1870) LR 5 QB 549 at 565 (Sir Alexander Cockburn LCJ).…
Barry v Butlin
(1838) 2 Moo PC 480 Para 18

…evidence as the propounder decides to adduce that the testator had the capacity to make a will at that time: Barry v Butlin [1838] EngR 1056; (1838) 2 Moo PC 480 and Pereira v Pereira [1901] AC 354 PC. In this regard the propounder may take advantage of the rule that a will, properly executed is, in the absence of evi…
Banks v Goodfellow
(1870) 5 QB 549

…ouris & Anor v Bellairs & Ors [2010] SASC 147; Wheatley v Edgar [2003] WASC 118; Executor Trustee Australia Ltd and Ors v Henderson [2006] SASC 82; Banks v Goodfellow (1870) LR 5 QB 549; Wesley v Wesley (1998) 71 SASR 1; Stephen Mark Dawes (Deceased) [2011] SASC 236, considered.…
[1901] AC 354
[1901] AC 354 Para 18

…ce that the testator had the capacity to make a will at that time: Barry v Butlin [1838] EngR 1056; (1838) 2 Moo PC 480 and Pereira v Pereira [1901] AC 354 PC. In this regard the propounder may take advantage of the rule that a will, properly executed is, in the absence of evidence to the contrary, presumed to h…

Legislation cited in this decision · 3

Probate Rules 2004 (SA)
1 mention (from Para 7)
Trustee Act 1936 (SA)
1 mention (from Para 3)
Wills Act 1936 (SA)
25AA 1 mention