Noelle Elizabeth Hillman v Lynda Box, Debrah Box and Skye Box as Executors of the Estate of Graeme William Box

• Jurisdiction: Australian Capital Territory
• Judge: Refshauge J
• Judgment Date: 28 May 2014
• Court: Supreme Court of ACT
• Docket Number: No. SC 564 of 2010
• Date: 28 May 2014

[2014] ACTSC 107

IN THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Judge:

Refshauge J

No. SC 564 of 2010

Between:

Noelle Elizabeth Hillman

Plaintiff

and

Lynda Box, Debrah Box and Skye Box as Executors of the Estate of Graeme William Box

Defendants

Counsel for the plaintiff: Mr D A Hassall

Counsel for the defendant: Dr G Ward and Mr G Theakston

400 George Street (Qld) Pty Ltd v B G International Ltd [2012] 2 Qd R 302

Abela v Public Trustee [1983] 1 NSWLR 308

Allcard v Skinner (1887) 36 Ch D 145

ANZ Banking Group Ltd v Alirezai [2004] QCA 6

Bank of New South Wales v Rogers (1941) 65 CLR 42

Barbaro v The Queen (2014) 305 ALR 323

Barrett v Hartley (1866) LR 2 Eq 789

Baumgartner v Baumgartner (1987) 164 CLR 137

Blore v Lang (1960) 104 CLR 124

Burgess v Rawnsley [1975] Ch 429

Burton v Camden London Borough Council [2000] 2 AC 399

Calabrese v Miuccio [1984] 1 Qd R 430

Calabrese v Miuccio (No 2) [1985] 1 Qd R 17

Chapman v Yang [2005] ASCTCA 37

Churton v Christian (1988) 13 NSWLR 241

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Corin v Patton (1989) 169 CLR 540

De Dominicus v Spano (1998) 9 BPR 16,279

Delaney v Molloy (1993) NSW Conv R 55–664

Garcia v National Australia Bank Ltd (1998) 194 CLR 395

Giumelli v Giumelli (1999) 196 CLR 101

Gould v Kemp (1834) 2 Mg 1 K 304

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Hackett v Public Trustee for the Australian Capital Territory (Unreported, ACTSC, Higgins J, 2 May 1997)

Hibberson v George (1989) 12 Fam LR 725

Hillman v Box & Ors as executors of the will of Box (2010) 5 ACTLR 122

Hillman v Box & Ors as executors of the will of Box (No 2) [2011] ACTSC 10

Hillman v Box & Ors as executors of the will of Box (No 3) [2011] ACTSC 24

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In Re Whitley (deceased) [1962] 1 WLR 922

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Domestic Relationships Act 1994 (ACT), s 3

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Family Provision (Amendment) Act 1996 (ACT), s 8

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Laws of Australia, [35.8.420]

CONVEYANCING — LAND TITLES UNDER THE TORRENS SYSTEM — Joint Tenancy and Tenancy in Common — Whether signed Deed and Transfer severs joint tenancy — Title transfer not completed before death of deceased — Principle of severance of joint tenancy — Joint tenancy severed in equity

DEEDS — What Amounts to a Deed — Whether document in question Agreement or Deed — No extrinsic evidence of intention of parties — Construction of document required — Document in question is a Deed

DEEDS — Claim Deed should be set aside on the ground of non est factum — Alternative claim that Deed should be set aside due to undue influence exerted on the Applicant — Applicant not prevented from seeking independent legal advice — Applicant freely signed Deed — Applicant capable of understanding the Deed — No undue influence exerted on the Applicant — Claim dismissed

SUCCESSION — FAMILY PROVISION AND MAINTENANCE — Applicant former domestic partner of deceased — Whether domestic partnership had ended at the time of the death of the deceased — Whether Applicant cared for the deceased during last illness — Applicant not adequately provided for

SUCCESSION — WILLS, PROBATE AND ADMINISTRATION — Claim for chattels alleged to be jointly owned with the deceased — Chattels divided under Deed — Claim dismissed

SUCCESSION — WILLS, PROBATE AND ADMINISTRATION — Claim that half the proceeds of a property sale held on constructive trust for the Applicant — Title in name of deceased only — Property purchased with funds of deceased — No significant financial contribution by the Applicant — No constructive trust exists

ORDER

THE COURT ORDERS THAT:

• 1. The plaintiff receive by way of provision out of the estate of the late Graeme William Box the sum of $50,000, such sum to be paid forthwith to the plaintiff's solicitors, Capital Lawyers;

• 2. Otherwise, there be judgment for the defendants on each other claim by the plaintiff.

• 3. The costs of the defendants of the proceedings be paid on a trustee basis from the estate of the late Graeme William Box.

• 4. The parties be heard as to the costs of the plaintiff.

THE EVIDENCE	[9]
Introduction – Background	[9]
The relationship after 2006	[15]
The purchasing of properties	[31]
The separation	[70]
The Termination Agreement	[81]
Ms Hillman's current circumstances	[112]
Ms Hillman's contribution to the maintenance of the bought properties	[121]
Evaluation of Ms Hillman's evidence	[124]
Evidence of Lynda Box	[133]
Evidence of Debrah Box	[141]
Evidence of Skye Box	[145]
PROCEDURAL HISTORY	[152]
THE ISSUES IN THE PROCEEDINGS	157]
Relationship between Mr Box and Ms Hillman after 2006	[166]
VALIDITY OF THE TERMINATION AGREEMENT	[192]
Non Est Factum	[194]
The absence of independent legal advice	[205]
Conclusion	[208]
Undue influence	[209]
The plaintiff's submissions	[213]
The defendants' submissions	[226]
Actual undue influence	[229]
Presumed undue influence	[243]
Absence of witness	[255]
Mr Nelson's involvement	[259]
Conclusion on presumed influence	[262]
Conclusions	[263]
APPLICABILITY OF JOINT TENANCY AND THE LAW OF SURVIVORSHIP	[266]
Ownership of the Spence property	[268]
Severance of joint tenancy in equity	[282]
Severance by mutual agreement	[285]
Severance by course of conduct	[299]
CLAIM TO QUEANBEYAN FACTORY	[306]
THE CLAIM UNDER THE FAMILY PROVISION ACT	[340]
Jurisdiction and powers of the Court under the Family Provision Act	[341]
Ms Hillman's situation	[355]
CLAIM FOR FURNITURE	[406]
DISPOSITION	[409]

1 On 15 April 2009, Graeme William Box made a simple will of three paragraphs and all contained on one page. The simplicity of the will, unfortunately, belies the complexity of litigation that it has spawned.

2 Mr Box was born on 8 February 1948 and died on 23 November 2009. Mr Box married twice; he first married Sarah Dobel in 1968 and three children were born during that marriage, Lynda Box, Debrah Box and Skye Box. They are the defendants in these proceedings.

3 I do not have any details of how that marriage ended nor of his second marriage to Helen Hewitt or how that marriage also ended. In any event, Mr Box entered into a domestic relationship in 1998 with Noelle Elizabeth Hillman, the plaintiff.

4 That relationship is said to have ended in 2006. I shall deal with that later.

5 During the relationship, Mr Box and Ms Hillman together purchased a number of properties for investment.

6 Mr Box's will, of which probate was granted on 2 March 2010, appointed his daughters, to whom I will refer for ease of reference and with no disrespect intended, as Lynda, Debrah and Skye, as his executors and left them the whole of his estate in equal shares as tenants in common. Ms Hillman was not mentioned in the will at all.

7 Ms Hillman commenced proceedings on 26 August 2010, originally under the Family Provisions Act 1969 (ACT), seeking that provision be made out of Mr Box's estate for Ms Hillman and certain declarations concerning dealings and property to which I will later refer.

8 ...