Wilson v Wilson [2017] NSWSC 1669

Wilson v Wilson [2017] NSWSC 1669

Because the plaintiff prepared the will, was sole executor and beneficiary, the will was not read out in the presence of the witnesses, there was no independent evidence that the deceased knew he was signing a will, and there was sworn evidence that the deceased later said he had no will and had been bullied or induced to sign a document, the Court could not conclude that there was no doubt that the plaintiff was entitled to probate. The requirements for ordering the caveat to cease under Pt 78 r 71 were therefore not satisfied.

Jurisdiction
Australia
Judgment Date
01 December 2017
Procedural Posture
Application for an Order That a Probate Caveat Cease to Be in Force / Procedural Ruling on Summons Under Supreme Court Rules 1970 (nsw) Pt 78 R 71
Outcome
Claim in prayer 1 of the summons dismissed.
Legal Topics
['probate Caveats' 'grant of Probate' 'testamentary Capacity' 'knowledge and Approval' 'suspicious Circumstances']
['succession' 'wills, Probate and Administration'] ['probate Caveats' 'grant of Probate' 'testamentary Capacity' 'knowledge and Approval' 'suspicious Circumstances']

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Procedural Posture

Application for an Order That a Probate Caveat Cease to Be in Force / Procedural Ruling on Summons Under Supreme Court Rules 1970 (nsw) Pt 78 R 71

Legal Issues

  1. 1 ['Whether the caveat filed by the defendant should cease to be in force under Supreme Court Rules 1970 (NSW) Pt 78 r 71.' "Whether the evidence failed to show that there was a doubt as to whether a grant of probate of the deceased's will should be made to the plaintiff." "Whether circumstances concerning the preparation and execution of the will raised sufficient doubt about the deceased's knowledge and approval or free testamentary intention."]

Ratio Decidendi

Because the plaintiff prepared the will, was sole executor and beneficiary, the will was not read out in the presence of the witnesses, there was no independent evidence that the deceased knew he was signing a will, and there was sworn evidence that the deceased later said he had no will and had been bullied or induced to sign a document, the Court could not conclude that there was no doubt that the plaintiff was entitled to probate. The requirements for ordering the caveat to cease under Pt 78 r 71 were therefore not satisfied.

Court Disposition

Claim in prayer 1 of the summons dismissed.

Orders

  • ["Claim for relief in paragraph 1 of the plaintiff's summons dismissed." 'The parties should confer and bring in short minutes of order to give effect to the reasons and to make directions for the further conduct of the proceedings as contemplated by Supreme Court Rules 1970 (NSW) Pt 78 r 71.' 'The Court will hear...