Application of Russell-Smith; Estate of Plumwood [2010] NSWSC 257

Application of Russell-Smith; Estate of Plumwood [2010] NSWSC 257

The Court was not satisfied that Dr Plumwood intended the undated document entitled Draft Will to constitute her will, because the will kit instructions contemplated execution and witnessing of a draft before preparation of the legal will and there was no evidence from the witnesses that she intended the draft to have legal efficacy. The Court was satisfied that the document amended and signed on 31 October 2005 was intended to be her will under s 18A, and that it impliedly revoked only those parts of the 1986 will inconsistent with its gifts to Bush Heritage Australia.

Jurisdiction
Australia
Judgment Date
08 April 2010
Procedural Posture
Probate and Wills Application / Judgment on Summons Seeking Probate in Solemn Form of an Undated Draft Will
Outcome
The claim for probate in solemn form of the undated Draft Will was to be dismissed, and the Court awaited advice from the plaintiff's solicitor about whether the plaintiff sought probate of the 1986 will to the extent not impliedly revoked and of the 31 October 2005 document.
Legal Topics
['informal Wills' 'probate in Solemn Form' 'testamentary Intention' 'implied Revocation' 'will Kits']
['probate' 'wills and Administration' 'succession'] ['informal Wills' 'probate in Solemn Form' 'testamentary Intention' 'implied Revocation' 'will Kits']

Case Brief

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Procedural Posture

Probate and Wills Application / Judgment on Summons Seeking Probate in Solemn Form of an Undated Draft Will

Legal Issues

  1. 1 ["Whether an undated document entitled Draft Will should be admitted to probate as Dr Valerie Plumwood's last will." 'Whether an unwitnessed document headed Last Will and Testament of Val Plumwood dated 31 October 2005 constituted an informal will under s 18A of the Probate and Administration Act 1898.' 'Whether the 31 October 2005 document impliedly revoked parts of the 16 July 1986 will.']

Ratio Decidendi

The Court was not satisfied that Dr Plumwood intended the undated document entitled Draft Will to constitute her will, because the will kit instructions contemplated execution and witnessing of a draft before preparation of the legal will and there was no evidence from the witnesses that she intended the draft to have legal efficacy. The Court was satisfied that the document amended and signed on 31 October 2005 was intended to be her will under s 18A, and that it impliedly revoked only those parts of the 1986 will inconsistent with its gifts to Bush Heritage Australia.

Court Disposition

The claim for probate in solemn form of the undated Draft Will was to be dismissed, and the Court awaited advice from the plaintiff's solicitor about whether the plaintiff sought probate of the 1986 will to the extent not impliedly revoked and of the 31 October 2005 document.

Orders

  • ['The Court indicated that, if asked, it would grant probate in solemn form to the plaintiff of the will of Valerie Plumwood dated 16 July 1986, excluding the gifts of Plumwood Mountain to the NSW National Parks and Wildlife Service and residue to the Australian Conservation Foundation and John Hector Macrae.' 'The...