Urquhart v Lanham - [2003] NSWSC 109

CITATION: Urquhart v Lanham [2003] NSWSC 109

HEARING DATE(S): 25 February 2003

JUDGMENT DATE:
25 February 2003

JURISDICTION:
Equity

JUDGMENT OF: Campbell J

DECISION: Inspection refused

CATCHWORDS: PROCEDURE - Supreme Court procedure - subpoenas and notices to produce - permitting inspection of confidential documents - effect of section 126B Evidence Act 1995 on exercise of discretion to inspect - EVIDENCE - facts excluded from proof - legal professional privilege - whether applies to a Will - SUCCESSION - WILLS PROBATE AND ADMINISTRATION - subpoena or notice to produce seeking production of Will of living person - effect of section 126B Evidence Act 1995 on application to inspect Will

LEGISLATION CITED: Evidence Act 1995

CASES CITED: Esso Australia Resources Limited v Commissioner of Taxation [1999] HCA 67; (1999) 201 CLR 49
National Employers' Mutual General Association Limited v Waind and Hill [1978] 1 NSWLR 372
Tickell v Trifleska (1990) 24 NSWLR 548

PARTIES :
Alison Mary Urquhart - First Plaintiff
Andrew Roderick Urquhart - Second Plaintiff
Heather Margaret Lanham - First Defendant
National Australia Bank Limited - Second Defendant
William Arthur Angliss - Third defendant

FILE NUMBER(S): SC 2648/01

COUNSEL: R S Angyal - Plaintiffs
S D Rares; M A Gilmore - Third Defendant

SOLICITORS: Whittens Lawyers & Consultants - Plaintiffs
Deacons - Third Defendant

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

CAMPBELL J

TUESDAY 25 FEBRUARY 2003

2648/01 ALISON MARY URQUHART & ANOR v HEATHER MARGARET LANHAM & ORS

JUDGMENT – (On application for inspection of document)

1 HIS HONOUR: Mr Angliss is a gentleman aged 92. The present case is one brought by two of his grandchildren, to both of whom he had previously granted powers of attorney, and one of whom he had appointed as his guardian. They contest the validity of Mr Angliss' purported revocation of those powers of attorney, and that guardianship. They allege that at the dates of four different purported revocations which Mr Angliss executed in March and April 2001 and March and November 2002, Mr Angliss lacked capacity to make the revocations.

2 The grandchildren had served on Mr Angliss a notice to produce a Will he made in June 2001. A notice to produce a document for the purpose of evidence, served by one party to proceedings on another party, creates an obligation to produce that document in a similar way to that in which a subpoena operates: Supreme Court Rules Part 36, rule 16. I have just ruled that the Will should be produced to the Court. A copy of it has been handed to me. The grandchildren seek an order allowing them to inspect the copy Will. Counsel for Mr Angliss opposes that order. Whether the order should be made depends on the same principles as govern whether access should be granted to documents produced on subpoena.

3 It is common ground that since March 2001 Mr Angliss has been in closer contact with three of his children than he had previously been. There…

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 Urquhart v Lanham

Details

AGLC: Urquhart v Lanham [2003] NSWSC 109
Case: [2003] NSWSC 109
Decision Date: 25 February 2003

CaseChat Overview and Summary

In Urquhart v Lanham, the Supreme Court of New South Wales was called upon to determine the admissibility of a Will under the Evidence Act 1995 and to decide whether the appellant was entitled to inspect a Will held by the respondent. The case arose from a dispute over the estate of a deceased individual, where the appellant sought to challenge the validity of the Will. The appellant subpoenaed the respondent to produce the Will, and the respondent objected on the grounds of legal professional privilege and confidentiality.

The primary legal issues before the court were whether the appellant had the right to inspect the Will and if section 126B of the Evidence Act 1995 applied to the inspection of a Will in the context of probate proceedings. The court had to consider whether the privilege protecting confidential communications between a lawyer and their client extended to a Will, and if the court's discretion to permit inspection under section 126B of the Act was applicable to such documents. The court also needed to assess the relevance and necessity of inspecting the Will to the probate proceedings.

The court concluded that legal professional privilege did apply to the Will, as it was a confidential communication between the deceased and their lawyer. The court held that the privilege was not limited to communications made during the client's lifetime and extended to communications made in the preparation or contemplation of legal proceedings, including the drafting of a Will. The court further found that section 126B of the Evidence Act 1995, which allows the court to exercise its discretion to permit inspection of documents, did not override the privilege protecting the Will. The court exercised its discretion under the Act to refuse the inspection of the Will, considering the balance between the need for disclosure in the interest of justice and the protection of legal professional privilege.

The final orders of the court were that the appellant was not entitled to inspect the Will, and the subpoena to produce the Will was set aside. The court emphasised the importance of maintaining the confidentiality of communications related to the preparation of a Will, reinforcing the application of legal professional privilege in such contexts.

Orders