Burge v Burge [2015] NSWCA 289

Burge v Burge [2015] NSWCA 289

Leave to appeal was not required because the appeal directly or indirectly concerned property worth $100,000 or more, given the overseas bank accounts and the executrix's acceptance of the will trusts by taking out probate. The appeal failed because, although a signed and dated professionally prepared testamentary document would ordinarily support an inference that the deceased intended it to form his will, the unusual circumstances justified the primary judge's lack of satisfaction under s 8(2)(a): the deceased was aware of the need for attesting witnesses, signed and retained documents that were not intended to have legal effect, kept the 2007 document separately from the envelope...

Jurisdiction
Australia
Judgment Date
24 September 2015
Procedural Posture
Appeal Concerning Probate and an Informal Testamentary Document / Appeal From Supreme Court of New South Wales, Equity Division Decision Granting Probate in Solemn Form
Outcome
Appeal dismissed.
Legal Topics
['informal Testamentary Documents' 'dispensing With Execution Requirements for Wills' 'grant of Probate' 'leave to Appeal' 'testamentary Intention']
['succession Law' 'probate' 'appellate Procedure'] ['informal Testamentary Documents' 'dispensing With Execution Requirements for Wills' 'grant of Probate' 'leave to Appeal' 'testamentary Intention']

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Procedural Posture

Appeal Concerning Probate and an Informal Testamentary Document / Appeal From Supreme Court of New South Wales, Equity Division Decision Granting Probate in Solemn Form

Legal Issues

  1. 1 ['Whether leave to appeal was required where the estate assets located within New South Wales were worth less than $100,000 but the estate included overseas bank accounts in excess of $100,000.' 'Whether the primary judge erred in not being satisfied under s 8(2)(a) of the Succession Act 2006 (NSW) that the deceased intended the signed and dated but unwitnessed 2007 document to form his will.']

Ratio Decidendi

Leave to appeal was not required because the appeal directly or indirectly concerned property worth $100,000 or more, given the overseas bank accounts and the executrix's acceptance of the will trusts by taking out probate. The appeal failed because, although a signed and dated professionally prepared testamentary document would ordinarily support an inference that the deceased intended it to form his will, the unusual circumstances justified the primary judge's lack of satisfaction under s 8(2)(a): the deceased was aware of the need for attesting witnesses, signed and retained documents that were not intended to have legal effect, kept the 2007 document separately from the envelope...

Court Disposition

Appeal dismissed.

Orders

  • ['Appeal dismissed.' 'The parties supply any agreed order as to costs within 14 days, or, alternatively, the parties each supply orders they propose together with submissions not exceeding 5 pages in support within 14 days.']