Ortner v Mewjork – Estate of Shing [2009] NSWSC 1381

Ortner v Mewjork – Estate of Shing [2009] NSWSC 1381

Although the evidence did not justify an affirmative finding that the signature on the propounded document was forged, significant dissimilarities between that signature and the deceased's specimen signatures, together with Mr Burford's unexplained failure to disclose the alleged duplicate copy of the will and the failure to find that duplicate, created suspicions that were not allayed. The Court was therefore not satisfied that the deceased intended the propounded document to constitute his will, so the plaintiff's s 18A claim failed and administration was to proceed on intestacy.

Jurisdiction
Australia
Judgment Date
10 December 2009
Procedural Posture
Succession Wills, Probate and Administration / Principal Judgment on Plaintiff's Application for a Declaration Under S 18 a of the Probate and Administration Act 1898 and Defendant's Cross Claim for Administration on Intestacy
Outcome
Plaintiff's application dismissed; defendant to receive letters of administration on an intestacy.
Legal Topics
['informal Wills' 'testamentary Intention' 'handwriting Evidence' 'suspicious Circumstances' 'forgery Allegation' 'intestacy' 'letters of Administration' 'revocation by Destruction']
['succession' 'probate and Administration'] ['informal Wills' 'testamentary Intention' 'handwriting Evidence' 'suspicious Circumstances' 'forgery Allegation' 'intestacy' 'letters of Administration' 'revocation by Destruction']

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 1 Authorities cited 2 Party arguments 2 Amounts and remedies 1
Sign in to unlock

Procedural Posture

Succession Wills, Probate and Administration / Principal Judgment on Plaintiff's Application for a Declaration Under S 18 a of the Probate and Administration Act 1898 and Defendant's Cross Claim for Administration on Intestacy

Legal Issues

  1. 1 ['Whether the document dated 2 August 2007 apparently signed by the deceased was a testamentary document within s 18A of the Probate and Administration Act 1898.' 'Whether the signature on the propounded document was that of the deceased or a forgery.' 'Whether suspicious circumstances surrounding the propounded document were allayed so that the Court could be satisfied the deceased intended it to constitute his will.' 'Whether the absence of an alleged duplicate copy of the will would give rise to a presumption of revocation.' "Whether administration of the deceased's estate should be granted to the defendant on an intestacy."]

Ratio Decidendi

Although the evidence did not justify an affirmative finding that the signature on the propounded document was forged, significant dissimilarities between that signature and the deceased's specimen signatures, together with Mr Burford's unexplained failure to disclose the alleged duplicate copy of the will and the failure to find that duplicate, created suspicions that were not allayed. The Court was therefore not satisfied that the deceased intended the propounded document to constitute his will, so the plaintiff's s 18A claim failed and administration was to proceed on intestacy.

Court Disposition

Plaintiff's application dismissed; defendant to receive letters of administration on an intestacy.

Orders

  • ["The plaintiff's claims for relief in paras 1-4 of the statement of claim be dismissed." 'Orders in accordance with paras 1 and 2 of the first cross-claim.' 'The proceedings be referred to the Registrar to complete the grant of letters of administration to the defendant on an intestacy.' 'Exhibits may be returned...