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Vescio v Bannister

Vescio v Bannister

Case [2010] NSWSC 1274 5 November 2010

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CITATION: Vescio v Bannister (Estate of the late Betty Tait) [2010] NSWSC 1274

HEARING DATE(S): 01/11/10

JUDGMENT DATE :
5 November 2010

JURISDICTION: Equity Division
Probate List

JUDGMENT OF: Barrett J

DECISION: Submissions to be made on precise form of rectifying order

CATCHWORDS: SUCCESSION - wills - statutory jurisdiction to rectify a will - construction of new statutory provision - need to identify testator's "instructions" and to ascertain from them testator's "intentions" - specific devise of house to daughter - reference in instructions to destination of any surplus of proceeds of sale of house remaining after purchase of retirement unit - no express reference to destination of any such retirement unit - implication that retirement unit should be treated in same way as house - will to be rectified accordingly

LEGISLATION CITED: Succession Act 2006, s 27
Succession Act 1981 (Qld), s 33(1)
Wills Act 1997 (Vic), s 31(1)
Wills Probate and Administration Act 1898, s 29A

CATEGORY: Principal judgment

CASES CITED: ANZ Trustees Ltd v Hamlet [2010] VSC 207
Davis Estate; Application of May [2010] NSWSC 989
Lawler v Herd [2010] QSC 281
Re Hawkes [2005] VSC 93
The Public Trustee of Queensland v Smith [2008] QSC 339; [2009] 1 QdR 26

PARTIES: Sandra Vescio - Plaintiff
James Bannister - Defendant

FILE NUMBER(S): SC 2010/124144

COUNSEL: Ms A P Healey - Plaintiff
Mr R W Washington - Defendant

SOLICITORS: Hall Partners - Plaintiff
J T Law Pty Ltd - Defendant

- 1 -

IN THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION

BARRETT J

FRIDAY, 5 NOVEMBER 2010

2010/124144 SANDRA VESCIO v JAMES BANNISTER & ANOR (AS EXECUTORS OF THE ESTATE OF THE LATE BETTY TAIT)

JUDGMENT

1 Betty Tait (“the deceased”) died on 24 May 2009 aged 83 years. Her daughter Sandra (“Mrs Vescio”) and her son Christopher (“Mr Tait”) were living at her death and are still living. They are her only children. Her husband died in 2004.

2 Probate of the deceased’s will dated 30 October 2007 was in due course granted to the executors named therein, Mrs Vescio and Mr Bannister (a friend). The deceased made several specific gifts. These are set out in clause 3(a) of the will. Among them is the following (clause 3(a)(vi)):

SANDRA DOROTHY VESCIO

3 The will continued (clause 3(b)):

THE REST AND RESIDUE

CHRISTOPHER ROBERT TAIT

SANDRA DOROTHY VESCIO

PROVIDED THAT

SARAH TAIT, DANIELLE VESCIO

RACHEL VESCIO

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 Vescio v Bannister

Details

AGLC: Vescio v Bannister [2010] NSWSC 1274
Case: [2010] NSWSC 1274
Decision Date: 5 November 2010

CaseChat Overview and Summary

The parties involved in the case of Vescio v Bannister were the executor of the deceased's estate and the daughter of the deceased, who was the intended beneficiary of a specific devise of a house in the will. The dispute centred on the interpretation of the will and the application of statutory provisions to rectify any potential errors or omissions. The court in question was the Supreme Court of New South Wales.

The legal issues that the court needed to decide involved the construction of a new statutory provision concerning the jurisdiction of the court to rectify a will. The court needed to identify the testator's instructions and ascertain the testator's intentions from those instructions. The specific issue was whether the will should be rectified to include a provision that the retirement unit, purchased with the proceeds of the sale of the house, should be treated in the same way as the house itself.

The court's reasoning was that the statutory provision required the court to identify the testator's instructions and ascertain the testator's intentions from them. In this case, the court found that there was an implication that the retirement unit should be treated in the same way as the house, as there was a reference in the instructions to the destination of any surplus of proceeds of sale of the house remaining after the purchase of the retirement unit, but no express reference to the destination of the retirement unit itself. The court held that the will should be rectified to include a provision that the retirement unit should be treated in the same way as the house. The court's decision was based on the need to give effect to the testator's intentions as ascertained from the instructions.

The final orders of the court were that the will should be rectified to include a provision that the retirement unit should be treated in the same way as the house, and that the executor of the estate was directed to execute the rectified will in accordance with the court's decision.

Orders