McCann v McCann [2011] NSWSC 1544

McCann v McCann [2011] NSWSC 1544

The caveat should not cease to be in force because there was an issue to be tried as to Ranita McCann's paternity and, independently, unresolved issues as to whether the deceased left a will, whether a lost will could be established, or whether the informal document dated 1 August 2010 should be admitted as an informal will. A parentage testing order should be made because paternity was genuinely in issue, Ranita McCann did not object if the costs were paid, and DNA testing could provide significant probative evidence. Inspection of the deceased's computer was necessary for the proper conduct of the proceedings, but forensic examination of the informal document was not warranted.

Jurisdiction
Australia
Judgment Date
16 November 2011
Procedural Posture
Probate and Succession Proceedings Concerning Administration of an Intestate Estate, Caveat, Parentage, and Alleged Informal Will / Interlocutory Applications
Outcome
Application for an order that the caveat cease to remain in force refused; parentage testing and inspection orders to be made; counsel to bring in short minutes of order in accordance with the reasons.
Legal Topics
['caveat Against Grant' 'letters of Administration' 'intestacy' 'parentage of Next of Kin' 'parentage Testing Procedure' 'informal Will' 'inspection of Estate Documents and Computer']
['succession' 'probate' 'equity' 'status of Children'] ['caveat Against Grant' 'letters of Administration' 'intestacy' 'parentage of Next of Kin' 'parentage Testing Procedure' 'informal Will' 'inspection of Estate Documents and Computer']

Case Brief

Summary, issues, holding and outcome

More case intelligence is available

Unlock the full research layer for this judgment.

Full judgment text Downloadable case file Legal principles 1 Authorities cited 2 Party arguments 2 Amounts and remedies 1
Sign in to unlock

Procedural Posture

Probate and Succession Proceedings Concerning Administration of an Intestate Estate, Caveat, Parentage, and Alleged Informal Will / Interlocutory Applications

Legal Issues

  1. 1 ['Whether the caveat lodged on 2 June 2011 should cease to be in force.' "Whether there was a serious question to be tried as to whether Ranita McCann was the deceased's daughter and next of kin." 'Whether there remained triable issues concerning the existence of a will, a lost will, or admission of an informal document dated 1 August 2010 as an informal will.' 'Whether Ranita McCann should be required to undergo a DNA test to assist in determining parentage.' "Whether the deceased's computer and documents removed from his house should be made available for inspection." 'Whether the informal testamentary document should be submitted for forensic handwriting examination.']

Ratio Decidendi

The caveat should not cease to be in force because there was an issue to be tried as to Ranita McCann's paternity and, independently, unresolved issues as to whether the deceased left a will, whether a lost will could be established, or whether the informal document dated 1 August 2010 should be admitted as an informal will. A parentage testing order should be made because paternity was genuinely in issue, Ranita McCann did not object if the costs were paid, and DNA testing could provide significant probative evidence. Inspection of the deceased's computer was necessary for the proper conduct of the proceedings, but forensic examination of the informal document was not warranted.

Court Disposition

Application for an order that the caveat cease to remain in force refused; parentage testing and inspection orders to be made; counsel to bring in short minutes of order in accordance with the reasons.

Orders

  • ['The order sought that the caveat cease to remain in force is refused.' 'An order ought to be made under s 26 of the Status of Children Act 1996 requiring parentage testing procedures.' 'The DNA testing orders are to specify how, where, and by whom the testing is to be carried out, what Ranita McCann is required to...