Borthwick v Mitchell [2017] NSWSC 1145

Borthwick v Mitchell [2017] NSWSC 1145

The notes were dictated by the deceased to the first plaintiff in circumstances where he knew his medical condition was very serious, had acknowledged that he had failed to update his will, and gave imperative instructions for the disposal of particular assets and everything else. In that context, the notes could only sensibly be read as testamentary rather than inter vivos. Although unsigned, unread by the deceased and intended to be formalised later if possible, the evidence established that the deceased intended them to operate immediately as a stopgap will until a formal will was executed. The first plaintiff's evidence about the dictation and circumstances was accepted,...

Jurisdiction
Australia
Judgment Date
31 August 2017
Procedural Posture
Equity Probate List Proceeding Seeking Relief Under S 8 of the Succession Act 2006 (nsw) for Informal Testamentary Notes / Principal Judgment After Hearing
Outcome
Declarations made; administration of the estate with the will annexed granted to the plaintiffs; costs of the plaintiffs and defendants ordered to be paid from the estate on an indemnity basis.
Legal Topics
['informal Wills' 'dispensing With Requirements for Execution of a Will' 'testamentary Intentions' 'knowledge and Approval' 'interested Witness' 'suspicious Circumstances' 'administration With the Will Annexed' 'representative Defendant']
['succession' 'probate and Administration' 'evidence' 'civil Procedure'] ['informal Wills' 'dispensing With Requirements for Execution of a Will' 'testamentary Intentions' 'knowledge and Approval' 'interested Witness' 'suspicious Circumstances' 'administration With the Will Annexed' 'representative Defendant']

Case Brief

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Procedural Posture

Equity Probate List Proceeding Seeking Relief Under S 8 of the Succession Act 2006 (nsw) for Informal Testamentary Notes / Principal Judgment After Hearing

Legal Issues

  1. 1 ['Whether the notes dictated by Colin Junior Crisp to the first plaintiff constituted a document that purports to state the testamentary intentions of the deceased for the purposes of s 8(1)(a) of the Succession Act 2006 (NSW).' 'Whether the deceased intended the notes to form his will for the purposes of s 8(2) of the Succession Act 2006 (NSW).' 'Whether the deceased knew and approved of the disposition made in favour of the first plaintiff and whether it was made freely and voluntarily by him for the purposes of s 10(3)(c) of the Succession Act 2006 (NSW).' 'Whether suspicions arising from the first plaintiff being an interested witness and principal beneficiary were allayed.']

Ratio Decidendi

The notes were dictated by the deceased to the first plaintiff in circumstances where he knew his medical condition was very serious, had acknowledged that he had failed to update his will, and gave imperative instructions for the disposal of particular assets and everything else. In that context, the notes could only sensibly be read as testamentary rather than inter vivos. Although unsigned, unread by the deceased and intended to be formalised later if possible, the evidence established that the deceased intended them to operate immediately as a stopgap will until a formal will was executed. The first plaintiff's evidence about the dictation and circumstances was accepted,...

Court Disposition

Declarations made; administration of the estate with the will annexed granted to the plaintiffs; costs of the plaintiffs and defendants ordered to be paid from the estate on an indemnity basis.

Orders

  • ['Declare that the notes dictated by Colin Junior Crisp ("the deceased") to the first plaintiff on 3 August 2013 ("the will") were the last will and testament of the deceased.' 'Declare that the Court is satisfied that the deceased knew and approved of the disposition made in the will in favour of the first...