Riddell v Johnson [2013] NSWCA 293

Riddell v Johnson [2013] NSWCA 293

Clause 6 could not sensibly be construed as the testatrix providing further substantial financial support by accepting full responsibility for the Scrapbook loan; it was an explanation for why no provision was made for the applicant, not a disposition of property or forgiveness of debt. Because no alternative construction was available and the will was not meaningless or ambiguous, leave to appeal was refused and the proposed issue concerning extrinsic evidence and privilege fell away.

Jurisdiction
Australia
Judgment Date
30 August 2013
Procedural Posture
Summons Seeking Leave to Appeal in a Succession Matter Concerning Construction of a Will / Application for Leave to Appeal From Judgment Given in the Equity Division on 20 March 2013
Outcome
Summons seeking leave to appeal dismissed; applicant ordered to pay the respondents' costs in this Court.
Legal Topics
['construction and Effect of Testamentary Disposition' 'whether Clause of Will Released Applicant From Indebtedness to Estate' 'guarantees and Contribution to Estate' 'leave to Appeal' 'extrinsic Evidence of Testamentary Intention' 'client Lawyer Privilege']
['succession' 'wills and Estates' 'civil Procedure'] ['construction and Effect of Testamentary Disposition' 'whether Clause of Will Released Applicant From Indebtedness to Estate' 'guarantees and Contribution to Estate' 'leave to Appeal' 'extrinsic Evidence of Testamentary Intention' 'client Lawyer Privilege']

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Procedural Posture

Summons Seeking Leave to Appeal in a Succession Matter Concerning Construction of a Will / Application for Leave to Appeal From Judgment Given in the Equity Division on 20 March 2013

Legal Issues

  1. 1 ['Whether clause 6 of the will, explaining that no provision was made for the applicant because the testatrix had already given substantial financial support to the applicant and her husband during her lifetime, released the applicant from any present or prospective indebtedness to the estate arising from her liability as guarantor of a company loan agreement.' 'Whether there was any tenable alternative construction of clause 6 sufficient to warrant leave to appeal.' "Whether access to the deceased's solicitors' file was relevant or available to obtain evidence of testamentary intention."]

Ratio Decidendi

Clause 6 could not sensibly be construed as the testatrix providing further substantial financial support by accepting full responsibility for the Scrapbook loan; it was an explanation for why no provision was made for the applicant, not a disposition of property or forgiveness of debt. Because no alternative construction was available and the will was not meaningless or ambiguous, leave to appeal was refused and the proposed issue concerning extrinsic evidence and privilege fell away.

Court Disposition

Summons seeking leave to appeal dismissed; applicant ordered to pay the respondents' costs in this Court.

Orders

  • ['Dismiss the summons seeking leave to appeal from the judgment given in the Equity Division on 20 March 2013.' 'Order that the applicant pay the costs of the respondents in this Court.']