Boland v Morton; Estate of Finlow [2004] NSWSC 1173

Boland v Morton; Estate of Finlow [2004] NSWSC 1173

The Court was not satisfied that Mrs Finlow executed a will on 20 May 1990 or at all in terms of the copy document. The evidence of the plaintiff and Mr Marshall regarding the alleged making and theft of the will was rejected as a fabrication. Further, there was no adequate evidence to rebut the presumption that, if such a will existed, it was destroyed by Mrs Finlow with the intention of revoking it. The plaintiff failed to establish grounds for the removal of the defendant as administrator, and the amended statement of claim was dismissed.

Jurisdiction
Australia
Judgment Date
23 December 2004
Procedural Posture
Application for Probate/disputed Will / Final Judgment
Outcome
Application dismissed; claims for relief in amended statement of claim dismissed
Legal Topics
['probate of Copy Will' 'challenge to Validity of Will' 'presumption of Revocation' 'removal of Administrator']
['probate' 'equity'] ['probate of Copy Will' 'challenge to Validity of Will' 'presumption of Revocation' 'removal of Administrator']

Case Brief

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Procedural Posture

Application for Probate/disputed Will / Final Judgment

Legal Issues

  1. 1 ['Whether the photocopied will dated 20 May 1990 was genuine or a forgery' 'Whether the original will was destroyed with intention to revoke' 'Whether the defendant should be removed as administrator of the estate']

Ratio Decidendi

The Court was not satisfied that Mrs Finlow executed a will on 20 May 1990 or at all in terms of the copy document. The evidence of the plaintiff and Mr Marshall regarding the alleged making and theft of the will was rejected as a fabrication. Further, there was no adequate evidence to rebut the presumption that, if such a will existed, it was destroyed by Mrs Finlow with the intention of revoking it. The plaintiff failed to establish grounds for the removal of the defendant as administrator, and the amended statement of claim was dismissed.

Court Disposition

Application dismissed; claims for relief in amended statement of claim dismissed

Orders

  • ['Order that the claims for relief in the amended statement of claim be dismissed' 'Counsel to be heard on the question of costs' 'Direct that the exhibits not be returned to the parties until further order']