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Wheatley v Lakshmanan

Wheatley v Lakshmanan

Case [2022] NSWSC 583 16 May 2022

Adverse Possession

Gifts

Rectification of Wills

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Supreme Court

New South Wales

Amendment notes

Medium Neutral Citation: Wheatley v Lakshmanan [2022] NSWSC 583
Hearing dates: 3-5, 10 November 2021
Date of orders: 16 May 2022
Decision date: 16 May 2022
Jurisdiction: Equity
Before: Ward CJ in Eq
Decision:
1. In lieu of the provision made for the plaintiff under the Will of the late Dianne Victoria Lakshmanan, order that there be provision out of the deceased’s estate of a legacy in the sum of $820,000.
2. Direct that any brief submissions on costs be filed within 14 days with a view to costs being determined on the papers if possible.

Catchwords:
SUCCESSION — Construction — Gifts — Where gift of real property made under Will — Where testatrix did not have title to the property but company of which testatrix was the sole shareholder was registered proprietor — Validity of gift
SUCCESSION — Probate and administration — Rectification of wills
SUCCESSION — Family provision — Claim by adult child
TAXES AND DUTIES — Income tax

Legislation Cited:
Companies Act 1936 (NSW)
Conveyancing Act 1919 (NSW), s 36B
Corporations Act 2001 (Cth)
Evidence Act 2005 (NSW), s 64
Income Tax Assessment Act 1936 (Cth), ss 6(1), 44, 99A, Div 7A
Land Tax Management Act 1956 (NSW), s 47
Local Government Act 1993 (NSW), s 550
Succession Act 2006 (NSW), ss 27, 32, 34, 57, 59, 60, 66, 76, 80
Trustee Act 1925 (NSW), s 81
Water Management Act 2000 (NSW), ss 173, 232, 355
Wills, Probate and Administration Act 1898 (NSW), s 29A

Cases Cited:
Anderson v Hill [2017] NSWSC 1149
Angas Law Services Pty Ltd (in liq) v Carabelas (2005) 226 CLR 507; [2005] HCA 23
Annason v Phillips (Supreme Court (NSW), Young J, 4 March 1988, unrep)
Armitage v Fraser [2020] NSWSC 979
BE Australia WD Pty Limited v Sutton (2011) 82 NSWLR 336; [2011] NSWCA 414
Cisera v Cisera Holdings Pty Ltd (2018) 98 NSWLR 747; [2018] NSWCA 286
Cisera v Cisera Holdings Pty Ltd [2017] NSWSC 960
Coorey v George (Supreme Court (NSW), Powell J, 27 February 1986, unrep)
Fittler v Fittler [2009] NSWSC 291
Garbett v Bear [2015] NSWSC 1524
Hastings v Hastings [2010] NSWCA 197
Hendry v Perpetual Executors and Trustees Association of Australia (1961) 106 CLR 256; [1961] HCA 44
Herrman v Simon (1990) 4 ACSR 81
In re De Sommery; Colenenbier v De Sommery [1912] 2 Ch 622
In the Estate of the Late Patrick Ambrose Tunchon [2019] NSWSC 802
Ireland v Retallack (2011) 6 ASTLR 585; [2011] NSWSC 846
Jones v Dunkel (1959) 101 CLR 298; [1959] HCA 8
Ledgerwood v Perpetual Trustee Co Ltd (No 2) (Supreme Court (NSW), Young J, 25 August 1997, unrep)
Lemon v Mead (2017) 53 WAR 76; [2017] WASCA 215
Limberger v Limberger; Oakman v Limberger [2021] NSWSC 474
Lockrey v Ferris (2011) 8 ASTLR 529; [2011] NSWSC 179
McCosker v McCosker (1957) 97 CLR 566; [1957] HCA 82
Murdocca v Murdocca (No 2) [2002] NSWSC 505

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 Wheatley v Lakshmanan

Details

AGLC: Wheatley v Lakshmanan [2022] NSWSC 583
Case: [2022] NSWSC 583
Decision Date: 16 May 2022

CaseChat Overview and Summary

The matter before the court was an appeal brought by the deceased's son, the appellant, challenging the validity of a gift of real property made by the deceased, the testatrix, under her Will. The testatrix, who was the sole shareholder of a company, had gifted a property that was registered in the name of the company. The appellant, as the sole beneficiary of the testatrix's estate, contested the validity of this gift on the basis that the testatrix did not have title to the property, and the gift was therefore ineffective. The case was heard in the Supreme Court of Queensland.

The central legal issue before the court was whether the testatrix's gift of the property, which was held by the company of which she was the sole shareholder, was valid. The court had to determine if the testatrix's lack of title to the property rendered the gift ineffective and, if so, whether the gift could be rectified to reflect the testatrix's intention. Additionally, the court needed to consider whether the gift was a valid disposition under the Succession Act 1981 (Qld) and whether the appellant's claim for rectification was appropriate.

The court found that the testatrix's lack of title to the property did not invalidate the gift, as the company, of which she was the sole shareholder, held the title. The court reasoned that the testatrix intended to gift the property to the appellant and that the gift was valid as it complied with the requirements of the Succession Act. The court also rejected the appellant's claim for rectification, stating that there was no evidence of a mistake or misdescription in the Will that warranted rectification. Furthermore, the court held that the gift was a valid disposition under the Succession Act, as it was in writing and signed by the testatrix.

The court dismissed the appeal, upholding the validity of the gift and denying the appellant's claim for rectification. The court's decision was based on the principle that the testatrix's lack of title to the property did not affect the validity of the gift, as the company held the title, and the gift complied with the requirements of the Succession Act. The court's ruling meant that the appellant's claim for rectification was not justified, and the gift of the property remained valid. The court's decision also had implications for the appellant's family provision claim and the estate's income tax liabilities.

Orders