Bell v Crewes [2011] NSWSC 1159

Bell v Crewes [2011] NSWSC 1159

The unsigned will prepared for the deceased was not admitted to probate because the deceased did not intend for the document to have present operation as his will without more—he intended it to operate only upon execution. However, the 2004 will was admitted to probate as the presumption of revocation by destruction was rebutted by the evidence.

Jurisdiction
Australia
Judgment Date
16 September 2011
Procedural Posture
Probate Action / Judgment After Hearing
Outcome
Application for probate of the unsigned will dismissed. Probate in solemn form of the copy of the 2004 will granted to the plaintiff. Costs of both parties to be paid out of the estate on the ordinary basis.
Legal Topics
['informal Wills' 'probate' 'execution of Wills' 'revocation of Wills' 'costs in Probate Proceedings']
['succession Law' 'equity'] ['informal Wills' 'probate' 'execution of Wills' 'revocation of Wills' 'costs in Probate Proceedings']

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Procedural Posture

Probate Action / Judgment After Hearing

Legal Issues

  1. 1 ['Whether an unsigned will prepared for the deceased should be admitted to probate under s 8 of the Succession Act 2006' 'Whether the deceased intended the unexecuted document to operate as his will without more' 'Whether the 2004 will should be admitted to probate given the absence of the original document and potential revocation' 'Entitlement to costs from the estate where the plaintiff was unsuccessful in the probate action']

Ratio Decidendi

The unsigned will prepared for the deceased was not admitted to probate because the deceased did not intend for the document to have present operation as his will without more—he intended it to operate only upon execution. However, the 2004 will was admitted to probate as the presumption of revocation by destruction was rebutted by the evidence.

Court Disposition

Application for probate of the unsigned will dismissed. Probate in solemn form of the copy of the 2004 will granted to the plaintiff. Costs of both parties to be paid out of the estate on the ordinary basis.

Orders

  • ['Claims for relief in the summons filed on 24 September 2010 dismissed.' 'Probate in solemn form of the copy of the will of Bruce William Crewes dated 9 July 2004 be granted to the plaintiff.' 'Leave reserved under s 41 of the Probate and Administration Act 1898 for any other person named as executor to apply for...