Rodny v Weisbord [2020] NSWCA 22

Rodny v Weisbord [2020] NSWCA 22

The appeal was allowed because the evidence did not establish on the balance of probabilities that Mrs Rodny intended the second typewritten draft will prepared on 15 August 2008 to operate without more as her will. Although the draft was accepted as stating her testamentary intentions, and there was evidence that she said she had made a will, the primary judge could not identify any specific document she had in mind or how she came to believe she had made a new will. A belief that she had made a will conforming to her instructions did not prove the statutory intention that the particular unexecuted document form her will.

Jurisdiction
Australia
Judgment Date
27 February 2020
Procedural Posture
Appeal in Succession/probate Proceedings Concerning an Informal Document Under Succession Act 2006 (nsw), S 8 / Appeal From Orders of the Supreme Court, Equity Division, in Weisbord V Rodny [2018] NSWSC 1866
Outcome
Appeal allowed.
Legal Topics
['informal Document' 'dispensing With Requirements for Execution of a Will' 'testamentary Intention' 'intention That Document Form a Will' 'grant of Probate in Solemn Form']
['succession' 'probate and Administration' 'wills and Estates'] ['informal Document' 'dispensing With Requirements for Execution of a Will' 'testamentary Intention' 'intention That Document Form a Will' 'grant of Probate in Solemn Form']

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Procedural Posture

Appeal in Succession/probate Proceedings Concerning an Informal Document Under Succession Act 2006 (nsw), S 8 / Appeal From Orders of the Supreme Court, Equity Division, in Weisbord V Rodny [2018] NSWSC 1866

Legal Issues

  1. 1 ['Whether the facts as found by the primary judge justified a conclusion that Mrs Rodny intended the second typewritten draft will to constitute her will.' 'Whether the primary judge properly assessed the evidence in finding that Mrs Rodny had made statements that she had made a will.']

Ratio Decidendi

The appeal was allowed because the evidence did not establish on the balance of probabilities that Mrs Rodny intended the second typewritten draft will prepared on 15 August 2008 to operate without more as her will. Although the draft was accepted as stating her testamentary intentions, and there was evidence that she said she had made a will, the primary judge could not identify any specific document she had in mind or how she came to believe she had made a new will. A belief that she had made a will conforming to her instructions did not prove the statutory intention that the particular unexecuted document form her will.

Court Disposition

Appeal allowed.

Orders

  • ['Appeal allowed.' 'Set aside orders 1, 2, 3, 4, 5, 6 and 8 made on 11 February 2019 and entered on 12 February 2019.' 'Order that a grant of probate in solemn form of the will of Rose Rodny dated 19 December 1997 be made to Laurence Rodny.' 'Order that the costs of the appeal of the appellant and the respondents,...