Bannister v Perpetual Trustee Co Ltd; Estate of Mascot Zita Blake deceased [2008] NSWSC 1283

The 2005 document lacks characteristics of a testamentary instrument and insufficient evidence exists to show intention to revoke the earlier will; therefore, the plaintiff is entitled to probate of the 2002 will.

Parties: Plaintiff: John Herbert Bannister; First Defendant: Perpetual Trustee Company Limited as Financial Manager for Paul Jonathan Blake; Second Defendant: Dustin Blake
Jurisdiction: Australia
Judgment Date: 17 November 2008
Procedural Posture: Probate Proceedings / Judgment/decision
Outcome: Plaintiff entitled to grant of probate in solemn form of the will of 24 December 2002.
Legal Topics: Validity of Testamentary Instruments, Revocation of Wills, Grant of Probate

Succession Probate Validity of Testamentary Instruments Revocation of Wills Grant of Probate

Case Brief

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Parties

John Herbert Bannister

Plaintiff

Perpetual Trustee Company Limited as Financial Manager for Paul Jonathan Blake

First Defendant

Dustin Blake

Second Defendant

Procedural Posture

Probate Proceedings / Judgment/decision

Legal Issues

1 Whether the 15 February 2005 document was intended by the testatrix to constitute a will or a revocation of an earlier will
2 Whether the plaintiff is entitled to a grant of probate in solemn form of the 24 December 2002 will

Ratio Decidendi

Court Disposition

Plaintiff entitled to grant of probate in solemn form of the will of 24 December 2002.

Orders

Plaintiff's costs to be paid out of the estate on the indemnity basis.
First defendant's costs to be paid out of the estate on the party and party basis.