Fischer v Foreman [2003] NSWSC 417

Fischer v Foreman [2003] NSWSC 417

The testatrix intended to reinstate her 28 March 2001 will but, by destroying the 25 September 2001 will which had contained an unconditional revocation clause, she did not revive the earlier will and instead would have died intestate. Because this was a clear mistake, section 18 A of the Wills, Probate and Administration Act 1898 was applied to declare that the 28 March 2001 will constituted her last will.

Jurisdiction
Australia
Judgment Date
28 April 2003
Procedural Posture
Application in the Estate of Susan Rae Mary Read for Rectification of Wills / Ex Tempore Judgment
Outcome
Rectification granted
Legal Topics
['rectification of Wills' 'revocation of Wills' 'revival of Earlier Wills' 'intestacy']
['succession' 'wills Probate and Administration'] ['rectification of Wills' 'revocation of Wills' 'revival of Earlier Wills' 'intestacy']

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Procedural Posture

Application in the Estate of Susan Rae Mary Read for Rectification of Wills / Ex Tempore Judgment

Legal Issues

  1. 1 ['Whether the will dated 25 September 2001 was validly revoked by destruction.' 'Whether destruction of the will dated 25 September 2001 revived the earlier will dated 28 March 2001.' "Whether section 18 A of the Wills, Probate and Administration Act 1898 should be used to remedy the testatrix's mistake."]

Ratio Decidendi

The testatrix intended to reinstate her 28 March 2001 will but, by destroying the 25 September 2001 will which had contained an unconditional revocation clause, she did not revive the earlier will and instead would have died intestate. Because this was a clear mistake, section 18 A of the Wills, Probate and Administration Act 1898 was applied to declare that the 28 March 2001 will constituted her last will.

Court Disposition

Rectification granted

Orders

  • ['Leave granted to file an Amended Summons in court.' 'Declaration that the will of the late Susan Rae Mary Read dated 25 September 2001 was validly revoked.' 'Declaration pursuant to section 18 A of the Wills, Probate and Administration Act 1898 that the will of the Deceased dated 28 March 2001 constitutes the last...