Macey v Finch; Estate of Donald Munro [2002] NSWSC 933

Macey v Finch; Estate of Donald Munro [2002] NSWSC 933

There was insufficient evidence that the deceased intended the solicitor’s notes to operate as his will without further action; the document was in the nature of instructions or a draft and was not authenticated or adopted by the deceased as his will. Accordingly, it does not meet the requirements of s 18A of the Wills Probate and Administration Act 1898 and cannot be admitted to probate.

Jurisdiction
Australia
Judgment Date
30 September 2002
Procedural Posture
Probate Application / Judgment
Outcome
Probate application for the informal will refused; plaintiff may take out letters of administration as on intestacy; orders made regarding costs.
Legal Topics
['informal Will' 'probate' 'intestacy' 'instructions to Solicitor' 'letters of Administration' 'costs in Probate Proceedings']
['succession'] ['informal Will' 'probate' 'intestacy' 'instructions to Solicitor' 'letters of Administration' 'costs in Probate Proceedings']

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Procedural Posture

Probate Application / Judgment

Legal Issues

  1. 1 ['Whether solicitor’s notes of instructions given by deceased constitute a will under s 18A of the Wills Probate and Administration Act 1898' 'Whether the deceased intended that the document prepared by the solicitor operate as his will without further action']

Ratio Decidendi

There was insufficient evidence that the deceased intended the solicitor’s notes to operate as his will without further action; the document was in the nature of instructions or a draft and was not authenticated or adopted by the deceased as his will. Accordingly, it does not meet the requirements of s 18A of the Wills Probate and Administration Act 1898 and cannot be admitted to probate.

Court Disposition

Probate application for the informal will refused; plaintiff may take out letters of administration as on intestacy; orders made regarding costs.

Orders

  • ['Plaintiff’s claim for probate dismissed' 'Plaintiff may take out letters of administration as on intestacy' 'Administration bond dispensed with' 'Costs of all parties paid out of the estate, except plaintiff’s costs on hearing which shall be paid by plaintiff personally' 'Only one set of costs on hearing allowed...