Bolger & Anor v McDermott & Anor [2013] NSWSC 919

Bolger & Anor v McDermott & Anor [2013] NSWSC 919

The Plaintiff failed to satisfy the Court, on the balance of probabilities, that the two informal testamentary documents were executed by the deceased or intended by him to operate as a will, alteration, or revocation under s 8 of the Succession Act 2006. The evidence, including inconsistencies in the Plaintiff’s account, the credibility of other witnesses, handwriting expert opinion, and delay in production of the documents, led the Court to reject the Plaintiff’s case. Accordingly, probate in solemn form was granted of the formally executed 2008 Will and Codicil. Further, the Plaintiff failed to demonstrate he was left without adequate provision for his maintenance or advancement under...

Jurisdiction
Australia
Judgment Date
11 July 2013
Procedural Posture
Equity and Probate Proceedings / Final Judgment After Combined Trial of Statement of Claim/probate and Family Provision Proceedings
Outcome
Amended Statement of Claim dismissed; orders for probate in solemn form; family provision claims (Plaintiff and Defendants) dismissed; orders stood over for costs argument.
Legal Topics
['probate in Solemn Form' 'informal Testamentary Documents' 'family Provision' 'testamentary Intention' 'revocation of Will' 'forgery' 'evidence' 'costs']
['succession Law' 'wills and Estates' 'equity' 'probate'] ['probate in Solemn Form' 'informal Testamentary Documents' 'family Provision' 'testamentary Intention' 'revocation of Will' 'forgery' 'evidence' 'costs']

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Procedural Posture

Equity and Probate Proceedings / Final Judgment After Combined Trial of Statement of Claim/probate and Family Provision Proceedings

Legal Issues

  1. 1 ['Whether either of two informal testamentary documents propounded by the Plaintiff constitute the last will of the deceased and should be admitted to probate under s 8 of the Succession Act 2006' "Whether adequate and proper provision was made for the Plaintiff by the deceased's will and codicil" 'Whether either Plaintiff or Defendants are entitled to family provision orders' "Whether the formal 2008 Will and Codicil were the valid expression of the deceased's testamentary intentions"]

Ratio Decidendi

The Plaintiff failed to satisfy the Court, on the balance of probabilities, that the two informal testamentary documents were executed by the deceased or intended by him to operate as a will, alteration, or revocation under s 8 of the Succession Act 2006. The evidence, including inconsistencies in the Plaintiff’s account, the credibility of other witnesses, handwriting expert opinion, and delay in production of the documents, led the Court to reject the Plaintiff’s case. Accordingly, probate in solemn form was granted of the formally executed 2008 Will and Codicil. Further, the Plaintiff failed to demonstrate he was left without adequate provision for his maintenance or advancement under...

Court Disposition

Amended Statement of Claim dismissed; orders for probate in solemn form; family provision claims (Plaintiff and Defendants) dismissed; orders stood over for costs argument.

Orders

  • ["Plaintiff's amended Statement of Claim is dismissed." "Probate in solemn form of the deceased's Will and Codicil, each made on 18 September 2008, is granted to the Defendants." 'The matter is remitted to the Registrar to complete the grant.' 'The Summons by the Plaintiff seeking a family provision order is...