McCann v McCann; Estate of Michael Robert McCann [2013] NSWSC 78

McCann v McCann; Estate of Michael Robert McCann [2013] NSWSC 78

The Court found insufficient evidence that a prior will existed and was destroyed after the deceased's death. The unsigned handwritten note dated 1 August 2010, following the context provided and applying s 8 of the Succession Act 2006, was declared to be the deceased's will as the court was satisfied it expressed testamentary intent. Ranita was not disentitled from obtaining a grant of letters of administration with the informal document annexed, and Jyana's claims for damages and orders against Ranita and David Griffiths were refused.

Parties
1st Plaintiff: Ranita McCann; 2nd Plaintiff: David Griffiths; Defendant: Janet (Jyana) McCann
Jurisdiction
Australia
Judgment Date
30 January 2013
Procedural Posture
Probate/contested Wills / Principal Judgment
Outcome
Application granted in part: informal document declared to be will; grant of administration to Ranita with informal document annexed; claims for substantive relief against Mr Griffiths and damages by Jyana dismissed; short minutes of order to be brought in.
Legal Topics
Validity of Informal Testamentary Documents, Grant of Letters of Administration, Destruction of Will, Standard of Proof in Civil Cases, Entitlement to Administration
Wills and Estates Probate Validity of Informal Testamentary Documents Grant of Letters of Administration Destruction of Will Standard of Proof in Civil Cases Entitlement to Administration

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 3 Authorities cited 5 Party arguments 2 Amounts and remedies 3
Sign in to unlock

Parties

Ranita McCann

1st Plaintiff

David Griffiths

2nd Plaintiff

Janet (Jyana) McCann

Defendant

Procedural Posture

Probate/contested Wills / Principal Judgment

Legal Issues

  1. 1 Whether an unsigned informal testamentary note constituted the deceased's will under s 8 Succession Act 2006
  2. 2 Whether a prior will existed and was destroyed by the applicant or others
  3. 3 Whether the applicant (Ranita) should be disentitled from a grant of administration due to her conduct

Ratio Decidendi

The Court found insufficient evidence that a prior will existed and was destroyed after the deceased's death. The unsigned handwritten note dated 1 August 2010, following the context provided and applying s 8 of the Succession Act 2006, was declared to be the deceased's will as the court was satisfied it expressed testamentary intent. Ranita was not disentitled from obtaining a grant of letters of administration with the informal document annexed, and Jyana's claims for damages and orders against Ranita and David Griffiths were refused.

Court Disposition

Application granted in part: informal document declared to be will; grant of administration to Ranita with informal document annexed; claims for substantive relief against Mr Griffiths and damages by Jyana dismissed; short minutes of order to be brought in.

Orders

  • Counsel for Ranita McCann to bring in short minutes of order consistent with reasons.
  • Ranita to deliver to Jyana any goods listed in paragraph 6 of Jyana's affidavit of 25 January 2013 in Ranita's possession, custody or control.