Wardy v Wardy & Ors; Estate of Edmond Wadih Wardy [2013] NSWSC 244

Wardy v Wardy & Ors; Estate of Edmond Wadih Wardy [2013] NSWSC 244

The court found that Edmond Wardy had not destroyed or revoked his 7 November 1992 will, rejected evidence that he had torn it up, and was satisfied to the requisite standard that the original will was absent because it was removed by Hassiba Wardy or by someone at her direction. The presumption of revocation was therefore rebutted and probate of a copy of the will should be granted to the NSW Trustee and Guardian. The court also accepted John Wardy's evidence that the 28 March 2008 appointor document was read and explained to Edmond Wardy, found that Edmond Wardy was capable of understanding it, and held that the non est factum challenge failed.

Jurisdiction
Australia
Judgment Date
22 March 2013
Procedural Posture
Equity Division Probate List Proceedings Concerning Probate of a Copy Will and Cross Claims About the Edmond Wardy Family Trust / Principal Judgment After Hearing; Family Provision Proceedings Adjourned
Outcome
Claims in the amended statement of claim and cross-claims were dismissed; probate of a copy of the will dated 7 November 1992 was ordered to be granted to the NSW Trustee and Guardian; costs and any further consequential orders were reserved for further hearing.
Legal Topics
['presumption of Revocation of Will Where Original Cannot Be Found' 'revocation of Will by Destruction' 'briginshaw Standard of Proof' 'grant of Probate of Copy Will' 'non Est Factum' 'change of Appointor of Discretionary Trust']
['succession' 'probate and Administration' 'trusts'] ['presumption of Revocation of Will Where Original Cannot Be Found' 'revocation of Will by Destruction' 'briginshaw Standard of Proof' 'grant of Probate of Copy Will' 'non Est Factum' 'change of Appointor of Discretionary Trust']

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

Equity Division Probate List Proceedings Concerning Probate of a Copy Will and Cross Claims About the Edmond Wardy Family Trust / Principal Judgment After Hearing; Family Provision Proceedings Adjourned

Legal Issues

  1. 1 ['Whether Edmond Wadih Wardy revoked his will dated 7 November 1992 or died intestate.' 'Whether the presumption of revocation arising from the missing original will was rebutted.' 'Whether the document dated 28 March 2008 by which Edmond Wardy resigned as appointor of the Edmond Wardy Family Trust and nominated John Wardy as appointor was invalid on the ground of non est factum.']

Ratio Decidendi

The court found that Edmond Wardy had not destroyed or revoked his 7 November 1992 will, rejected evidence that he had torn it up, and was satisfied to the requisite standard that the original will was absent because it was removed by Hassiba Wardy or by someone at her direction. The presumption of revocation was therefore rebutted and probate of a copy of the will should be granted to the NSW Trustee and Guardian. The court also accepted John Wardy's evidence that the 28 March 2008 appointor document was read and explained to Edmond Wardy, found that Edmond Wardy was capable of understanding it, and held that the non est factum challenge failed.

Court Disposition

Claims in the amended statement of claim and cross-claims were dismissed; probate of a copy of the will dated 7 November 1992 was ordered to be granted to the NSW Trustee and Guardian; costs and any further consequential orders were reserved for further hearing.

Orders

  • ['Order that the claims for relief in the amended statement of claim be dismissed.' 'Order that the claims for relief in the further amended cross-claim filed by William Wardy and in the amended cross-claim filed by Sam Wardy be dismissed.' 'Order that the probate of a copy of the will of Edmond Wardy dated 7...