Estate of John James Dunn; Anderson v Scrivener [2002] NSWSC 900

Estate of John James Dunn; Anderson v Scrivener [2002] NSWSC 900

The handwritten "Alteration to my Will" document was not admitted to probate because, although it was a document purporting to embody testamentary intentions, the Court was not satisfied that the Testator intended it, in itself and without more action on his part, to operate as an amendment to his will. The surrounding circumstances included the 30 August 2001 letter stating that he was only thinking of changing his will, the possibility that the handwritten document was merely thinking on paper, his previous practice of making formal solicitor-drafted wills and giving copies to the executor, the absence of any communication of the alleged changes to beneficiaries, the equivocal placement...

Jurisdiction
Australia
Judgment Date
17 October 2002
Procedural Posture
Equity Division Probate List Application Under Section 18 a of the Wills, Probate and Administration Act 1898 / Judgment on Whether a Handwritten Document Should Be Admitted to Probate With the Will Dated 25 October 2000 and on Costs
Outcome
Paper not admitted to probate.
Legal Topics
['informal Wills' 'amendment of Will' 'testamentary Intention' 'admission to Probate' 'costs in Probate Proceedings']
['succession' 'probate' 'civil Procedure'] ['informal Wills' 'amendment of Will' 'testamentary Intention' 'admission to Probate' 'costs in Probate Proceedings']

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Procedural Posture

Equity Division Probate List Application Under Section 18 a of the Wills, Probate and Administration Act 1898 / Judgment on Whether a Handwritten Document Should Be Admitted to Probate With the Will Dated 25 October 2000 and on Costs

Legal Issues

  1. 1 ['Whether the handwritten document commencing "Alteration to my Will" should be admitted to probate as an amendment to the Testator\'s will under section 18A of the Wills, Probate and Administration Act 1898.' 'Whether the Court was satisfied that the Testator intended the handwritten document to operate, without more, as an amendment to his will.' 'What costs order should be made in the probate proceedings.']

Ratio Decidendi

The handwritten "Alteration to my Will" document was not admitted to probate because, although it was a document purporting to embody testamentary intentions, the Court was not satisfied that the Testator intended it, in itself and without more action on his part, to operate as an amendment to his will. The surrounding circumstances included the 30 August 2001 letter stating that he was only thinking of changing his will, the possibility that the handwritten document was merely thinking on paper, his previous practice of making formal solicitor-drafted wills and giving copies to the executor, the absence of any communication of the alleged changes to beneficiaries, the equivocal placement...

Court Disposition

Paper not admitted to probate.

Orders

  • ['Declare that the document commencing "Alteration to my Will" a copy of which is annexure B to the affidavit of Donald Anderson sworn 3 December 2001 in these proceedings is not a document entitled to be admitted to probate.' 'Remit the matter to the Registrar for consideration of whether any matters remain...