Vincent Zang v Deborah Middleton - [2011] NSWSC 881

Supreme Court

New South Wales

Medium Neutral Citation: Vincent Zang v Deborah Middleton; The estate of Keith Joseph Cook, late of Balgowlah [2011] NSWSC 881
Hearing dates: 25 July 2011
Decision date: 25 July 2011
Jurisdiction: Equity Division
Before: Slattery J
Decision:
Declaration that the instrument dated 1 April 2007 attached to the Court's orders is the last will and testament of the deceased, Keith Joseph Cook; proceedings otherwise dismissed; the parties' agreements as to costs are noted.

Catchwords: SUCCESSION - wills, probate and administration - probate and letters of administration - 1 April 2007 instrument propounded as a will of the deceased does not comply with the Succession Act, s 6 formal requirements for a will - whether the Court should under Succession Act, s 8 dispense with the requirements for execution of the instrument as a will - proceedings settled - analysis of whether the circumstances justify the making of a Succession Act, s 8 order - HELD: the April 2007 instrument is a document that purports to state the testamentary intentions of the deceased and the deceased intended it to form his will - COSTS - agreement as to costs upon an exchange of correspondence - dispute as to whether costs agreed to be paid on the ordinary basis or on the solicitor and client basis - HELD: upon the true construction of the terms agreed in the correspondence the parties agreed that the costs of Deborah Middleton and Sharon Cook be paid out of the deceased's estate on the solicitor and client basis.
Legislation Cited: Civil Procedure Act 2005 (NSW), s 73
Family Provision Act 1982 (NSW)
Probate and Administration Act (NSW) 1898, s 18A
Succession Act 2006 (NSW), ss 6, 8
Uniform Civil Procedure Rules 2005, Rule 42.2
Cases Cited: Brown v M'Encroe (1890) 11 LR (NSW) Eq 134
Calderbank v Calderbank [1975] 3 All ER 333
Hatsatouris v Hatsatouris [2001] NSWCA 408
In the estate of O'Dell [2010] NSWSC 678
Perpetual Trustee Co Ltd v Baker [2011] FMCA 264
PMT Partners Pty Limited (In Liquidation) v Australian National Parks and Wildlife Services (1995) 184 CLR 301
Re estate of Paul Francis Hodges Deceased; Shorter v Hodges (1988) 14 NSWLR 698
Category: Costs
Parties: Defendant/Cross Claimant - Deborah Middleton
Cross-Defendant - Vincent Zang
Second Cross-Defendant - Yan Zhao
Representation: Plaintiff/Cross Defendants - J.S. Emmett
Defendant/Cross Claimant - R.N. O'Neill
Plaintiff/Cross Defendants - Esplin Solicitors
Defendant/Cross Claimant - Coleman Greig Lawyers

File Number(s): 2010/109397; 2010/142352
Publication restriction: No

EX TEMPORE Judgment

HIS HONOUR : I have been asked to make consent orders and a declaration in two proceedings, numbered 2010/109397 and 2010/142352, and to resolve a question of costs. The declaration is that the document signed by Keith Joseph Cook dated 1 April 2007 and appearing as Annexure A to the orders, is the last will and testament of Keith Joseph Cook. To make this declaration the Court must examine the evidence and determine under Succession Act 2006, s 8 whether this document formed Keith Cook's…

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.

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Details

Case: [2011] NSWSC 881
Decision Date: 25 July 2011

CaseChat Overview and Summary

Vincent Zang commenced proceedings in the Supreme Court of Queensland against Deborah Middleton, seeking a declaration that a 1 April 2007 instrument was not a valid will of the deceased, John William Zang. The dispute centred on whether the instrument complied with the formal requirements of a will under the Succession Act 2006 (Qld) and whether the court should dispense with those requirements under s 8 of the Act. The parties settled the proceeding, leaving the court to decide whether the 2007 instrument was a valid will or some other document, and to determine the basis on which the costs of the proceedings were to be paid.

The court was required to determine whether the 2007 instrument was a valid will and if not, whether the court should, under s 8 of the Succession Act, dispense with the requirements for its execution as a will. The court also needed to decide the basis on which the costs of the proceedings were to be paid. The court found that the 2007 instrument was a document that purported to state the testamentary intentions of the deceased and that the deceased intended it to form his will. The court considered the circumstances to justify making an order under s 8 of the Succession Act.

The court held that the 2007 instrument was a document that purported to state the testamentary intentions of the deceased and that the deceased intended it to form his will. The court found that the instrument did not comply with the formal requirements for a will under the Succession Act but that the circumstances justified making an order under s 8 of the Act. The court also held that the parties had agreed to a costs arrangement, but there was a dispute as to whether the costs were to be paid on the ordinary basis or on the solicitor and client basis. The court found that the terms of the correspondence between the parties indicated that the costs were to be paid on the solicitor and client basis.

The court ordered that the 2007 instrument was the will of the deceased and that the costs of Deborah Middleton and Sharon Cook be paid out of the deceased's estate on the solicitor and client basis.

Orders