Wise v Callaghan & Anor; in the Estate of Lavelle Mary Greaves [2007] NSWSC 580

Wise v Callaghan & Anor; in the Estate of Lavelle Mary Greaves [2007] NSWSC 580

The altered copy of the 1984 Will was a document, purported to embody the deceased's testamentary intentions, and, having been annotated and signed by the deceased and placed in an envelope marked "my last Will", was intended by her to operate as her Will without more. A s 18A declaration was therefore appropriate, but the plaintiff's unauthorised borrowing from the estate justified requiring an undertaking to repay the loan with interest and requiring her to verify, file and pass accounts.

Jurisdiction
Australia
Judgment Date
18 May 2007
Procedural Posture
Probate Application Under (nsw) Wills, Probate & Administration Act 1898, S 18 a Concerning an Informal Will / Ex Tempore Judgment
Outcome
Section 18A declaration made upon the plaintiff's undertaking to repay the loan with interest, and plaintiff ordered to pass accounts.
Legal Topics
['informal Will' 'testamentary Intentions' 'section 18 a Declaration' 'financial Manager' 'estate Accounts' 'unauthorised Borrowing From Estate']
['wills and Estates' 'probate' 'equity'] ['informal Will' 'testamentary Intentions' 'section 18 a Declaration' 'financial Manager' 'estate Accounts' 'unauthorised Borrowing From Estate']

Case Brief

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Procedural Posture

Probate Application Under (nsw) Wills, Probate & Administration Act 1898, S 18 a Concerning an Informal Will / Ex Tempore Judgment

Legal Issues

  1. 1 ["Whether the altered photocopy of the deceased's 1984 Will was a document for the purposes of s 18A." 'Whether the document purported to embody the testamentary intentions of the deceased.' 'Whether the deceased demonstrated that she intended the document to operate as her Will without more.' "Whether the plaintiff's borrowing from the estate required conditions before obtaining a grant."]

Ratio Decidendi

The altered copy of the 1984 Will was a document, purported to embody the deceased's testamentary intentions, and, having been annotated and signed by the deceased and placed in an envelope marked "my last Will", was intended by her to operate as her Will without more. A s 18A declaration was therefore appropriate, but the plaintiff's unauthorised borrowing from the estate justified requiring an undertaking to repay the loan with interest and requiring her to verify, file and pass accounts.

Court Disposition

Section 18A declaration made upon the plaintiff's undertaking to repay the loan with interest, and plaintiff ordered to pass accounts.

Orders

  • ["Upon the plaintiff undertaking to the Court that she will by 18 November 2007 repay to the estate the sum of $250,000 said by her to have been borrowed from the estate, together with interest thereon at the rate applicable for unpaid legacies from the date of the advance to her until repayment, a declaration was...