1. A summary of the facts of the case.
Stephen Silady, the deceased, signed a document ("Statutory
Declaration") on April 4, 1983, drafted by his wife Pauline (a
layperson) on her own initiative, by which he assigned to his brother,
John, the deceased's one-third share in a family business on the event
of his death. The document also gave control of the one-third share in
the business to the brother John in the event of Stephen's disability
due to illness or mental infirmity. The purpose of the document was to
exclude the passing of the one-third interest to another brother,
Anthony, who was an equal partner in the business with the brothers
Stephen and John. Stephen died on 4 August 1991.
2. A summary of the progress of the case, if applicable. Accordingly,
if the matter is the decision of an Appeal Court, then reference
should be made to the decision of the lower court.
Upon the death of Stephen, Pauline, the widow of Stephen, applied to
Probate Court for a declaration that he had died intestate, and for
letters of administration of her husband's estate to be granted her,
and filed the "Statutory Declaration" with the court. John Siladi
applied to the court that the "Statutory Declaration" be recognized as
the legal will of Stephen. After receiving depositions and oral
testimony, the judge, Santow J, ruled that the "Statutory Declaration"
according to s18a of the Wills, Probate and Administration Act 1898,
was a will, insofar as the testamentary portion was concerned. Pauline
Silady appealed the ruling. Santow J also rejected evidence that had
been offered as to the inability of Stephen to transfer his share of
the company to John, an action that was prohibited by the articles of
incorporation for the company.
3. A summary of the arguments put by both the plaintiff and the
defendant, assuming they can be ascertained from the judgment.
The original Respondent, John Siladi, argued through his attorneys
that the "Statutory Declaration" constituted a valid will according to
the provisions of s18a of the Wills, Probate and Administration Act
1898.
WILLS, PROBATE AND ADMINISTRATION ACT 1898 - SECT 18A
http://www.austlii.edu.au/au/legis/nsw/consol_act/wpaaa1898329/s18a.html
"Certain documents to constitute wills etc
18A Certain documents to constitute wills etc
(1) A document purporting to embody the testamentary intentions of a
deceased person, even though it has not been executed in accordance
with the formal requirements of this Act, constitutes a will of the
deceased person, an amendment of such a will or the revocation of such
a will if the Court is satisfied that the deceased person intended the
document to constitute the person's will, an amendment of the person's
will or the revocation of the person's will.
(2) In forming its view, the Court may have regard (in addition to the
document) to any other evidence relating to the manner of execution or
testamentary intentions of the deceased person, including evidence
(whether admissible before the commencement of this section or
otherwise) of statements made by the deceased person."
The Respondent's attorneys argued that the document met the three
tests necessary for it to be considered a valid will, to wit:
"(i) It must be in documentary form;
(ii) It must embody the testamentary intentions of the deceased;
(iii) Although the document has not been executed in accordance with
the statutory formality, it must nevertheless constitute "a will of
the deceased person"."
The Appellant, Pauline Silady, argued through her attorneys, and in
depositions and oral testimony, that the "Statutory Declaration" was
not a valid will, because:
a) it was drafted by her on her own initiative, without prior
consultation with her husband, and therefore did not represent his own
intentions, and
b) that he knew that it was not a will, and
c) that the original judge had erred when he had excluded the evidence
of the articles of incorporation,
or as the cited record has it:
"(a) The document embodied the testamentary intentions of the
appellant, as distinct from the deceased; and
(b) The Court could not be satisfied that the deceased intended the
document "to constitute his ... will".
Secondly, it was contended that Santow J erred in rejecting the tender
of the Memorandum and Articles of Association of Derwent Tool,
Engineering and Plastic Company Pty Ltd."
4. A summary of the judgment, and if the matter is an appeal court
decision, then a summary of each judge?s reasons.
On appeal, the court decided 2-1 (Gleeson CJ, Powell JA, Mason P
dissenting) to set aside the orders of Santow J and to remand the case
to Probate Court for further consideration.
Powell JA wrote the majority opinion, Gleeson CJ concurring.
Powell JA concluded that:
1) That Santow J had erred when he excluded the evidence of the
Memorandum and Articles of Association of Derwent Tool, Engineering
and Plastic Company Pty Ltd. Powell JA concluded that in order to
correctly assess if the "Statutory Declaration" were, indeed, a
testamentary document, it was necessary to know the exact nature of
the assets being disposed, and that evidence bearing on the value,
limitations, and management of the assets was essential to the
formation of an accurate valuation of the assets. Exclusion of the
evidence was, therefore, an error meriting the granting of the appeal.
From the opinion:
"So far as the first ground is concerned, the submission - thoroughly
confused though the manner of its being advanced was - appeared to be
that, as the provisions of Article 6 of the Company's Articles of
Association - so it was said - precluded the transfer of a deceased
member's shares to (inter alia) that deceased member's brother, so
much of the "Statutory Declaration" as appeared to be directed toward
transferring the deceased's shares in the Company to the Respondent
would have been ineffective, a matter which was relevant to the
question whether the "Statutory Declaration" embodied the testamentary
intentions of the deceased, and the further question whether the
deceased intended the "Statutory Declaration" to be his will."
2) It was clear from the testimony and depositions that Pauline Silady
was the author of the "Statutory Declaration," and that it
represented, at best, the wishes of the deceased but not his
testamentary intentions as she perceived them. This became more clear
when it was discovered that Stephen Silady (the deceased) had
previously signed a valid will, drafted by a solicitor, in 1964, which
had been automatically revoked by law upon his subsequent marriage to
Pauline Pahlow in 1967. It was the conclusion of Powell JA that the
deceased was familiar with the legal form and formalities of a valid
will, and that he would not have mistaken the informally drafted and
signed document for a will.
From the opinion:
"So far as the second matter is concerned, the submission - again,
advanced in a thoroughly confused and confusing fashion - appeared to
be that, given the circumstances which gave rise to the drafting of
the "Statutory Declaration"; the fact that the drafting of the
"Statutory Declaration" was undertaken by the Appellant of her own
initiative and not at the request of the deceased; and the fact that
the deceased gave no instructions as to, and had no input to, the
terms of the "Statutory Declaration", it could not be held that the
document "embodied the testamentary intentions of the deceased", and,
still less, that the deceased intended the "Statutory Declaration" to
constitute his will - the "Statutory Declaration", so it seemed to be
suggested, did not more than reflect what were then the deceased's
wishes if there were to be some family dispute as to the conduct of
the businesses in either of the events referred to in it."
[...]
"Despite the fact that, during the course of the hearing of the
appeal, each of the Chief Justice (Transcript p.23) and I (Transcript
p.22) expressed our respective concerns at the fact that Santow J
appeared, either, not to have had complete and accurate information as
to what appeared to be matters of some significance, or, that he
misunderstood what was the true position in relation to those matters,
and, further, that it appeared that this Court might still not be in
possession of complete and accurate information as to those matters,
both counsel appeared to resist the suggestion that the matter might
need to be remitted to the Probate Division for re-hearing, and,
rather, submitted that the material which was before the Court was
sufficient to enable the Court to determine the questions arising on
the appeal in favour of their respective clients."
3) There was a further ground for granting the appeal and remand, to
wit, that Santow J ruled upon insufficient, misleading, or
misunderstood evidence.
From the opinion:
"If, as seems to be accepted, the questions to be determined upon an
application such as this are questions of fact, then, as it seems to
me, it follows that, in any case in which the Court has been misled as
to, or has misapprehended, or misunderstood, what are, the material
facts, the hearing of the application will, in all probability, have
miscarried, so that the result of that hearing ought to be set aside.
While it may be that, in many such cases, an appellate court, on
determining what were the true facts, would be in a position to make
that order which ought to have been made at first instance, in the
present case, I remain to be persuaded that, even now, this Court is
in possession of all the relevant facts - in this regard it is
sufficient to point out that the effect of the death of the deceased
upon the partnership between his brother Anthony and himself is not
known. This being so, it seems to me that, rather than endeavour to
determine this application for itself, the better course for the Court
to adopt is to remit the matter to the Probate Division for
re-hearing."
Powell JA, Gleeson CJ concurring, recommended and ordered:
"In the result, the orders which I would favour are: -
1. ORDER that the appeal be allowed.
2. ORDER that the Orders made by Santow J on 8 February 1995 be set aside.
3. ORDER that, insofar as they deal with the question of the
application of s.18A of the Wills Probate and Administration Act 1898
to the document entitled "Statutory Declaration" and executed by the
deceased on 9 April 1983, the proceedings be remitted to the Probate
Division for re-hearing."
Gleeson CJ in his concurring opinion adds:
"It would be dangerous to make a judgment about whether the document
constituted a will, by virtue of s18A of the Wills, Probate &
Administration Act 1898 without appreciating what the deceased's
understanding would have been of the nature of the property to which
he was referring. To take an example not directly related to the
central issue in the present case, what did the deceased have in mind
when he said that, in the event of illness rendering him incapable of
conducting the business, his share of the business was to be conducted
by John Siladi? The meaning of that statement or direction is obscure,
and in the absence of reasonably clear evidence as to the nature of
the asset or assets to which the deceased was referring it is
difficult to reach any confident conclusion as to what he had
intended.
It may be that, when the Probate Division has before it, in
appropriate detail, the best evidence that is available as to the
nature and extent of the assets referred to in the Statutory
Declaration, the conclusion reached by Santow J will be seen to have
been correct. I do not understand Mason P and Powell JA to disagree as
to the legal principles to be applied. In the absence of better
evidence of the relevant facts I prefer to express no view as to the
application of those principles to the circumstances of the present
case."
(Answer in two sections - continued...) |
Clarification of Answer by
hlabadie-ga
on
22 Dec 2003 20:23 PST
Mason P in a dissenting opinion concluded that:
1) The "Statutory Declaration" did, in fact, represent a valid will,
in that there was no evidence offered that the deceased had not read
or did not understand the document, and that it, therefore, could
reasonably be considered to represent his testamentary intentions,
despite that it had originated with his wife.
From the opinion:
"There is no force in the submission that the executed document did
not embody the testamentary intentions of the deceased. The fact that
the initiative for preparing the document came from the appellant, who
retained the document in her possession between its execution and the
date of the deceased's death, is not inconsistent with the document
embodying the deceased's testamentary intentions. It was not suggested
that the deceased did not know or understand the document which he had
executed. It arose out of his concerns (expressed to the appellant)
about his older brother Anthony, his desire to maintain the family
business as a going concern, and his expressed wish to favour his
younger brother John. The deceased was literate, albeit idiosyncratic
in his spelling ability. In the appeal it was accepted by the
appellant that the deceased had signed that document as a serious act.
The fact that the appellant was the moving party in the preparation
and execution of a document, which in a technical sense was against
her interest, does not show that the document was not adopted by the
deceased, who signed it, had it witnessed, and handed it to the
appellant for safe-keeping."
[...]
"In my view, the Statutory Declaration is a document which purports to
embody the "testamentary intentions" of the deceased and, at the same
time, to satisfy the Court that the deceased intended the document "to
constitute his ... will". The required standard of proof is the civil
standard. The fact that the document was prepared in the form of a
Statutory Declaration in which the deceased did "solemnly declare" his
wishes in a document that was signed by him, witnessed by his wife,
and handed to his wife for safe keeping all support this conclusion.
The evidence of Mr Dominic tends in the same direction: it is
admissible pursuant to s18A(2). That the Statutory Declaration is
testamentary, at least in part, and reveals an intention, at least in
part, that the deceased intended that it should "constitute his ...
will" is indicated by the dispositions "in the event of my death" of
the deceased's one-third share in the business of Derwent Thermostats
Pty Ltd and Derwent Controls and of his half-share in the business of
Derwent Properties, in each case in favour of the deceased's brother
John Siladi."
2) The exclusion of the tendered evidence of the articles of
incorporation need not be regarded as an error, in that it was not
possible to say with certainty what the deceased understood about the
operation of the limiting provisions, or that there was in fact a firm
prohibition.
From the opinion:
"It is far from clear that the ground advanced on appeal for tendering
the Articles of Association was advanced before Santow J. In any event
the rejection of the tender did not, in my view, result in any
miscarriage, for a number of reasons. The deceased may never have read
Article 6; if he had, or had it in contemplation in 1983, he may
(probably with good cause) have formed a view that, when read with
Article 5, Article 6 did not restrict the capacity to transmit the
shares in the family company to a fellow member; the deceased may have
been ignorant of the law; the deceased may (with good cause ) have
formed the view that Article 6 would not have impeded his legal
personal representative from holding the deceased's shares in trust
for his brother John; the deceased may have thought it likely that the
surviving brothers would have been prepared to waive the possible
effect of Article 6 and, by amending the Articles or otherwise, to
permit John to become registered in accordance with the deceased's
"testamentary" wishes."
5. A summary of the particular area of succession law relevant to the
case, and an assessment of the importance of the case to that area of
succession law.
The main thrust of the ruling bears upon the nature of a testamentary
intention which amounts to a valid will as set forth in s18A of the
Wills, Probate & Administration Act 1898. All of the judges agreed
upon the legal principles to be applied as tests, but they disagreed
as to the facts in the case. It seems that the only effect upon the
law is to set a more stringent standard for evidentiary examination of
the intention and the scope of a purported will during the probate. It
should be noted that upon re-hearing, a detailed examination of the
estate and the excluded evidence resulted in the same finding as by
Santow J, to wit, that the "Statutory Declaration" did constitute a
valid will.
JUDGMENT OF: Bergin J
DECISION:
Statutory declaration constituted deceased's will
JUDGMENT:
THE SUPREME COURT OF NEW SOUTH WALES
EQUITY DIVISION
PROBATE LIST
BERGIN J
FRIDAY 3 SEPTEMBER 1999
http://www.austlii.edu.au/cgi-bin/disp.pl/au/cases/nsw/supreme%5fct/1999/890.html?query=%7e+pahlow+silady+v+%20siladi
From the judgment:
"50 I therefore conclude on the balance of probabilities that the
first two issues in respect of the application of s18A of the Act are
satisfied. The real issue in this case is whether the deceased
intended this document to constitute his will."
[...]
"61 I am satisfied on the balance of probabilities that the
conversation with Mr Dominic was a conversation in which the deceased
was referring to the dispositions referred to in the statutory
declaration in 1983 and is evidence in favour of a finding that the
deceased intended it to constitute his will."
[...]
"68 I have weighed this matter carefully but I am of the view that
the existence of Article 6 [of the Memorandum] viewed with all the
other factors to which I have had regard does not persuade me that the
deceased did not intend the statutory declaration to constitute his
will."
6. Your critical evaluation of the case. This could include your view
as to whether the case is a strong authority, and whether it sets any
new precedent in the particular area of succession law.
This portion of the Question requires a legal opinion by the
Researcher. It is necessary to draw attention to the Disclaimers, and
to point out that Google Researchers cannot give legal opinions, and
that nothing in an Answer should be construed as such or should
substitute for such.
That said, one measure of the strength or importance of the case is
the citation of its opinions in subsequent cases. See:
MITTONI v. BRADLEY & ANOR [2003] WASC 114 (13 June 2003)
http://www.austlii.edu.au/cgi-bin/disp.pl/au/cases/wa/WASC/2003/114.html?query=%7e+pahlow+silady+v+%20siladi
Polyak Estate; Amy v. Permanent Trustee [1999] NSWSC 862 (18 August 1999)
http://www.austlii.edu.au/cgi-bin/disp.pl/au/cases/nsw/supreme%5fct/1999/862.html?query=%7e+pahlow+silady+v+%20siladi
Macey v. Finch; Estate of Donald Munro [2002] NSWSC 933 (30 September 2002)
http://www.austlii.edu.au/cgi-bin/disp.pl/au/cases/nsw/supreme%5fct/2002/933.html?query=%7e+pahlow+silady+v+%20siladi
Re Estate Sharman; Ex parte Versluis [1999] NSWSC 709 (5 July 1999)
http://www.austlii.edu.au/cgi-bin/disp.pl/au/cases/nsw/supreme%5fct/1999/709.html?query=%7e+pahlow+silady+v+%20siladi
It appears from the above that the case has served to reinforce the
essential points of law, but that it offered no new guidance on
interpretation. As Austin J in Polyak Estate; Amy v. Permanent Trustee
[1999] NSWSC 862 (18 August 1999) wrote in reference to the citations
to previous case law, including this decision:
"In my opinion, those cases depended so much on their facts that they
are of only general assistance in the present case. They do not appear
to me to add to the principles of law to which I have referred."
SEARCHED THE LII database at:
http://www.austlii.edu.au
hlabadie-ga
|
Clarification of Answer by
hlabadie-ga
on
23 Dec 2003 06:05 PST
Unfortunately, the case as available on the Web,
http://www.austlii.edu.au/cgi-bin/disp.pl/au/cases/nsw/supreme%5fct/95040164.html?query=%7e+pahlow+silady+v+%20siladi
is not marked by paragraph. I do not have access to the printed
version. As such, I have attempted to count according to the standard
format as shown in other cases. (N.B., that decisions that have
referred to this case have used page numbers to cite portions of the
opinions. Unfortunately, the Web version is also not paginated.)
This comes from p 8 of Mason:
"(i) It must be in documentary form;
(ii) It must embody the testamentary intentions of the deceased;
(iii) Although the document has not been executed in accordance with
the statutory formality, it must nevertheless constitute "a will of
the deceased person"."
This is also from p 8 of Mason:
"(a) The document embodied the testamentary intentions of the
appellant, as distinct from the deceased; and
(b) The Court could not be satisfied that the deceased intended the
document "to constitute his ... will".
Secondly, it was contended that Santow J erred in rejecting the tender
of the Memorandum and Articles of Association of Derwent Tool,
Engineering and Plastic Company Pty Ltd."
This is from p 11 of Mason:
"There is no force in the submission that the executed document did
not embody the testamentary intentions of the deceased. The fact that
the initiative for preparing the document came from the appellant, who
retained the document in her possession between its execution and the
date of the deceased's death, is not inconsistent with the document
embodying the deceased's testamentary intentions. It was not suggested
that the deceased did not know or understand the document which he had
executed. It arose out of his concerns (expressed to the appellant)
about his older brother Anthony, his desire to maintain the family
business as a going concern, and his expressed wish to favour his
younger brother John. The deceased was literate, albeit idiosyncratic
in his spelling ability. In the appeal it was accepted by the
appellant that the deceased had signed that document as a serious act.
The fact that the appellant was the moving party in the preparation
and execution of a document, which in a technical sense was against
her interest, does not show that the document was not adopted by the
deceased, who signed it, had it witnessed, and handed it to the
appellant for safe-keeping."
This is from p 16 of Mason:
"In my view, the Statutory Declaration is a document which purports to
embody the "testamentary intentions" of the deceased and, at the same
time, to satisfy the Court that the deceased intended the document "to
constitute his ... will". The required standard of proof is the civil
standard. The fact that the document was prepared in the form of a
Statutory Declaration in which the deceased did "solemnly declare" his
wishes in a document that was signed by him, witnessed by his wife,
and handed to his wife for safe keeping all support this conclusion.
The evidence of Mr Dominic tends in the same direction: it is
admissible pursuant to s18A(2). That the Statutory Declaration is
testamentary, at least in part, and reveals an intention, at least in
part, that the deceased intended that it should "constitute his ...
will" is indicated by the dispositions "in the event of my death" of
the deceased's one-third share in the business of Derwent Thermostats
Pty Ltd and Derwent Controls and of his half-share in the business of
Derwent Properties, in each case in favour of the deceased's brother
John Siladi."
This is from p 22 of Mason:
"It is far from clear that the ground advanced on appeal for tendering
the Articles of Association was advanced before Santow J. In any event
the rejection of the tender did not, in my view, result in any
miscarriage, for a number of reasons. The deceased may never have read
Article 6; if he had, or had it in contemplation in 1983, he may
(probably with good cause) have formed a view that, when read with
Article 5, Article 6 did not restrict the capacity to transmit the
shares in the family company to a fellow member; the deceased may have
been ignorant of the law; the deceased may (with good cause ) have
formed the view that Article 6 would not have impeded his legal
personal representative from holding the deceased's shares in trust
for his brother John; the deceased may have thought it likely that the
surviving brothers would have been prepared to waive the possible
effect of Article 6 and, by amending the Articles or otherwise, to
permit John to become registered in accordance with the deceased's
"testamentary" wishes."
This is from p 36 of Powell:
"So far as the first ground is concerned, the submission - thoroughly
confused though the manner of its being advanced was - appeared to be
that, as the provisions of Article 6 of the Company's Articles of
Association - so it was said - precluded the transfer of a deceased
member's shares to (inter alia) that deceased member's brother, so
much of the "Statutory Declaration" as appeared to be directed toward
transferring the deceased's shares in the Company to the Respondent
would have been ineffective, a matter which was relevant to the
question whether the "Statutory Declaration" embodied the testamentary
intentions of the deceased, and the further question whether the
deceased intended the "Statutory Declaration" to be his will."
This from p 37 of Powell:
"So far as the second matter is concerned, the submission - again,
advanced in a thoroughly confused and confusing fashion - appeared to
be that, given the circumstances which gave rise to the drafting of
the "Statutory Declaration"; the fact that the drafting of the
"Statutory Declaration" was undertaken by the Appellant of her own
initiative and not at the request of the deceased; and the fact that
the deceased gave no instructions as to, and had no input to, the
terms of the "Statutory Declaration", it could not be held that the
document "embodied the testamentary intentions of the deceased", and,
still less, that the deceased intended the "Statutory Declaration" to
constitute his will - the "Statutory Declaration", so it seemed to be
suggested, did not more than reflect what were then the deceased's
wishes if there were to be some family dispute as to the conduct of
the businesses in either of the events referred to in it."
This is from p 40 of Powell:
"Despite the fact that, during the course of the hearing of the
appeal, each of the Chief Justice (Transcript p.23) and I (Transcript
p.22) expressed our respective concerns at the fact that Santow J
appeared, either, not to have had complete and accurate information as
to what appeared to be matters of some significance, or, that he
misunderstood what was the true position in relation to those matters,
and, further, that it appeared that this Court might still not be in
possession of complete and accurate information as to those matters,
both counsel appeared to resist the suggestion that the matter might
need to be remitted to the Probate Division for re-hearing, and,
rather, submitted that the material which was before the Court was
sufficient to enable the Court to determine the questions arising on
the appeal in favour of their respective clients."
This is from p 43 of Powell:
"If, as seems to be accepted, the questions to be determined upon an
application such as this are questions of fact, then, as it seems to
me, it follows that, in any case in which the Court has been misled as
to, or has misapprehended, or misunderstood, what are, the material
facts, the hearing of the application will, in all probability, have
miscarried, so that the result of that hearing ought to be set aside.
While it may be that, in many such cases, an appellate court, on
determining what were the true facts, would be in a position to make
that order which ought to have been made at first instance, in the
present case, I remain to be persuaded that, even now, this Court is
in possession of all the relevant facts - in this regard it is
sufficient to point out that the effect of the death of the deceased
upon the partnership between his brother Anthony and himself is not
known. This being so, it seems to me that, rather than endeavour to
determine this application for itself, the better course for the Court
to adopt is to remit the matter to the Probate Division for
re-hearing."
This is from pp 7-8 of Gleeson:
"It would be dangerous to make a judgment about whether the document
constituted a will, by virtue of s18A of the Wills, Probate &
Administration Act 1898 without appreciating what the deceased's
understanding would have been of the nature of the property to which
he was referring. To take an example not directly related to the
central issue in the present case, what did the deceased have in mind
when he said that, in the event of illness rendering him incapable of
conducting the business, his share of the business was to be conducted
by John Siladi? The meaning of that statement or direction is obscure,
and in the absence of reasonably clear evidence as to the nature of
the asset or assets to which the deceased was referring it is
difficult to reach any confident conclusion as to what he had
intended.
It may be that, when the Probate Division has before it, in
appropriate detail, the best evidence that is available as to the
nature and extent of the assets referred to in the Statutory
Declaration, the conclusion reached by Santow J will be seen to have
been correct. I do not understand Mason P and Powell JA to disagree as
to the legal principles to be applied. In the absence of better
evidence of the relevant facts I prefer to express no view as to the
application of those principles to the circumstances of the present
case."
This is from p 17 of Austin (Polyak Estate; Amy v. Permanent Trustee
[1999] NSWSC 862 (18 August 1999))
http://www.austlii.edu.au/cgi-bin/disp.pl/au/cases/nsw/supreme%5fct/1999/862.html?query=%7e+pahlow+silady+v+%20siladi
"17 In addition to the Masters and Brown decisions, counsel for the
parties referred me to a number of unreported decisions of this Court:
Cloon v Allingham (14 December 1990, Needham J); Re Kenkalo (23
October 1991, Powell J); Pahlow-Silady v Siladi (21 November 1994,
Santow J; on appeal 22 April 1997, Gleeson CJ, Mason P and Powell JA);
Re Perram (4 April 1995, Santow J); Re Stewart (12 April 1996, Cohen
J); and Laurence v Gorman (17 November 1995, Simos J). In my opinion,
those cases depended so much on their facts that they are of only
general assistance in the present case. They do not appear to me to
add to the principles of law to which I have referred."
In the circumstances, that is the best that I can do with the paragraphing.
hlabadie-ga
|
Clarification of Answer by
hlabadie-ga
on
05 Jan 2004 21:38 PST
Gleeson CJ in his concurring opinion adds:
"It would be dangerous to make a judgment about whether the document
constituted a will, by virtue of s18A of the Wills, Probate &
Administration Act 1898 without appreciating what the deceased's
understanding would have been of the nature of the property to which
he was referring. To take an example not directly related to the
central issue in the present case, what did the deceased have in mind
when he said that, in the event of illness rendering him incapable of
conducting the business, his share of the business was to be conducted
by John Siladi? The meaning of that statement or direction is obscure,
and in the absence of reasonably clear evidence as to the nature of
the asset or assets to which the deceased was referring it is
difficult to reach any confident conclusion as to what he had
intended.
It may be that, when the Probate Division has before it, in
appropriate detail, the best evidence that is available as to the
nature and extent of the assets referred to in the Statutory
Declaration, the conclusion reached by Santow J will be seen to have
been correct. I do not understand Mason P and Powell JA to disagree as
to the legal principles to be applied. In the absence of better
evidence of the relevant facts I prefer to express no view as to the
application of those principles to the circumstances of the present
case."
Gleeson withholds any opinion about whether the "Statutory
Declaration" was a will in fact, because it was not clear to the Court
what exactly was the extent of the estate's assets, and what were the
assets covered by the Declaration. It might be that it was a will,
once everything was sorted out by the Probate Court. Or it might not
be, according to Gleeson. In other words, the issue of whether it was
or was not a will was reserved for the Probate Court to decide.
Powell was of the opinion that it was not a will in the proper sense,
but offered to allow the matter to be settled by the Probate Court on
remand, in which Gleeson concurred.
"So far as the second matter is concerned, the submission - again,
advanced in a thoroughly confused and confusing fashion - appeared to
be that, given the circumstances which gave rise to the drafting of
the "Statutory Declaration"; the fact that the drafting of the
"Statutory Declaration" was undertaken by the Appellant of her own
initiative and not at the request of the deceased; and the fact that
the deceased gave no instructions as to, and had no input to, the
terms of the "Statutory Declaration", it could not be held that the
document "embodied the testamentary intentions of the deceased", and,
still less, that the deceased intended the "Statutory Declaration" to
constitute his will - the "Statutory Declaration", so it seemed to be
suggested, did not more than reflect what were then the deceased's
wishes if there were to be some family dispute as to the conduct of
the businesses in either of the events referred to in it."
[...]
"Despite the fact that, during the course of the hearing of the
appeal, each of the Chief Justice (Transcript p.23) and I (Transcript
p.22) expressed our respective concerns at the fact that Santow J
appeared, either, not to have had complete and accurate information as
to what appeared to be matters of some significance, or, that he
misunderstood what was the true position in relation to those matters,
and, further, that it appeared that this Court might still not be in
possession of complete and accurate information as to those matters,
both counsel appeared to resist the suggestion that the matter might
need to be remitted to the Probate Division for re-hearing, and,
rather, submitted that the material which was before the Court was
sufficient to enable the Court to determine the questions arising on
the appeal in favour of their respective clients."
Powell doubts that the Declaration was a will, because it was drafted
by the wife on her own and reflected her own understanding of the
situation with respect to the brothers, not the testamentary wishes of
her husband. Powell argues that it could at best reflect the husband's
intentions at that moment with regard to his share of the company, but
that he knew that it was not a will, having made one in the past.
Powell also notes that the accounting of the assets that was given to
the court was so confused that it was impossible to decide what
exactly was meant to be covered by the Declaration, which made it
ineffective as a will. Until all those objections were cleared up, the
case had to be reopened, and the appeal granted. The Probate Court had
not examined the case carefully enough to come to a decision.
Therefore, the appeal was granted and the case remanded for further
hearing.
hlabadie-ga
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