Re Estate of Max Frederick Dippert [2001] NSWSC 167

Re Estate of Max Frederick Dippert [2001] NSWSC 167

The 2 April 1996 document was formally invalid because the testator signed in the presence of only one witness, but the circumstances were the clearest case for probate of an informal will under s 18A. Rectification under s 29A failed because omitting the proposed words was not shown to carry out the testator's actual intention; the evidence at most addressed what the testator might have intended had he known the true shareholding and trust position, which is insufficient for rectification.

Jurisdiction
Australia
Judgment Date
20 March 2001
Procedural Posture
Probate Summons Concerning Informal Will, Rectification and Construction of Will / Hearing in the Probate List; Construction Issue Postponed by Consent
Outcome
The document dated 2 April 1996 was declared to be the last will of Max Frederick Dippert; rectification was refused; the matter was referred to the Registrar to complete the grant; construction was postponed.
Legal Topics
['informal Will' 'rectification of Wills' 'construction of Wills' 'share Register' 'beneficial Ownership of Shares' 'trusts on Company Register']
['succession' 'probate' 'corporations' 'trusts'] ['informal Will' 'rectification of Wills' 'construction of Wills' 'share Register' 'beneficial Ownership of Shares' 'trusts on Company Register']

Case Brief

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Procedural Posture

Probate Summons Concerning Informal Will, Rectification and Construction of Will / Hearing in the Probate List; Construction Issue Postponed by Consent

Legal Issues

  1. 1 ['Whether probate should be granted of the document dated 2 April 1996 as an informal will under s 18A of the Wills Probate and Administration Act 1898.' 'Whether the time for applying for rectification under s 29A of the Wills Probate and Administration Act 1898 should be extended.' 'Whether the will should be rectified by omitting words concerning shares already held by beneficiaries.' 'Whether references to shareholdings should be determined by registered holdings or by trust endorsements or trust deeds.' 'Whether questions of construction should be dealt with in the same probate summons.']

Ratio Decidendi

The 2 April 1996 document was formally invalid because the testator signed in the presence of only one witness, but the circumstances were the clearest case for probate of an informal will under s 18A. Rectification under s 29A failed because omitting the proposed words was not shown to carry out the testator's actual intention; the evidence at most addressed what the testator might have intended had he known the true shareholding and trust position, which is insufficient for rectification.

Court Disposition

The document dated 2 April 1996 was declared to be the last will of Max Frederick Dippert; rectification was refused; the matter was referred to the Registrar to complete the grant; construction was postponed.

Orders

  • ['Declare that the "will" bearing date 2 April 1996 is the last will of the testator Max Frederick Dippert.' 'Decline the application for rectification.' 'Refer the matter to the Registrar to complete the grant.' 'The costs of all parties to date may come out of the estate.' "Unless the plaintiffs' solicitors' costs...