Estate of Daly [2012] NSWSC 555

Estate of Daly [2012] NSWSC 555

The document commencing with the words indicating it was the last will and testament of Eliane Lucie Daly stated her testamentary intentions and was intended by her to form her will, but was not duly executed because her husband signed it by mistake. Section 27 did not provide the appropriate basis for relief because, absent an order under s 8, the document was not a valid will capable of rectification, and the document signed by the deceased was not intended by her to be her will. The proper course was to act under s 8 of the Succession Act 2006 and admit the document intended by the deceased to be her will notwithstanding lack of due execution.

Jurisdiction
Australia
Judgment Date
25 May 2012
Procedural Posture
Probate Application Concerning Mirror Wills Mistakenly Signed by Husband and Wife / In Chambers; Referred by the Registrar in Probate
Outcome
The Court declared that Eliane Lucie Daly intended the document prepared in her name and dated 5 May 2003 to form her will and remitted the matter to the Registrar to complete the grant of probate; no order for rectification was made.
Legal Topics
['mirror Wills' 'mistaken Execution of Wills' 'informal Testamentary Documents' 'rectification of Wills' 'succession Act 2006, S 8' 'succession Act 2006, S 27']
['wills, Probate and Administration' 'succession Law'] ['mirror Wills' 'mistaken Execution of Wills' 'informal Testamentary Documents' 'rectification of Wills' 'succession Act 2006, S 8' 'succession Act 2006, S 27']

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Procedural Posture

Probate Application Concerning Mirror Wills Mistakenly Signed by Husband and Wife / In Chambers; Referred by the Registrar in Probate

Legal Issues

  1. 1 ["Whether the will prepared for the deceased but signed by her husband should be rectified by omitting the husband's signature and deeming it to have been signed by the deceased." 'Whether the document actually signed by the deceased should be rectified under s 27 of the Succession Act 2006 to conform with her testamentary intentions.' 'Whether the document prepared for the deceased should be admitted to probate as an informal testamentary document under s 8 of the Succession Act 2006.']

Ratio Decidendi

The document commencing with the words indicating it was the last will and testament of Eliane Lucie Daly stated her testamentary intentions and was intended by her to form her will, but was not duly executed because her husband signed it by mistake. Section 27 did not provide the appropriate basis for relief because, absent an order under s 8, the document was not a valid will capable of rectification, and the document signed by the deceased was not intended by her to be her will. The proper course was to act under s 8 of the Succession Act 2006 and admit the document intended by the deceased to be her will notwithstanding lack of due execution.

Court Disposition

The Court declared that Eliane Lucie Daly intended the document prepared in her name and dated 5 May 2003 to form her will and remitted the matter to the Registrar to complete the grant of probate; no order for rectification was made.

Orders

  • ['Declare that the deceased Eliane Lucie Daly intended the document commencing "THIS IS THE LAST WILL AND TESTAMENT of me, ELIANE LUCIE DALY" and bearing date 5 May 2003 to form her will.' 'Remit the matter to the Registrar to complete the grant of probate of the said will.']