Bar-Mordecai v Rotman & Ors [2000] NSWCA 123

Bar-Mordecai v Rotman & Ors [2000] NSWCA 123

The appeal failed because the trial judge's critical findings were open on the evidence. The appellant's evidence that the deceased tore up the 1989 will was incredible, inconsistent and uncorroborated, and the circumstances left no room for the missing-will presumption of revocation; the 1989 will remained the deceased's last testamentary instrument. The evidence also supported the finding that the appellant was not the deceased's de facto husband, but occupied a position of influence over her and unconscientiously abused it. The appellant was sufficiently on notice of Jones v Dunkel, the revisions to the ex tempore reasons were permissible, no bias was shown, allegations of perjury were...

Jurisdiction
Australia
Judgment Date
16 May 2000
Procedural Posture
Probate Appeal Concerning Revocation of Will, Claimed Intestacy Entitlement as De Facto Husband, Renunciation of Probate, and Grant of Letters of Administration With Will Annexed / Appeal From Decisions of Einstein J in the Supreme Court Equity Division
Outcome
Appeal dismissed with costs.
Legal Topics
['revocation of Will by Tearing' 'presumption of Revocation Where Will Not Found After Death' 'de Facto Relationship for Intestacy' 'jones V Dunkel Inference' 'fresh Evidence on Appeal' 'revision of Ex Tempore Reasons' 'judicial Bias' 'renunciation of Probate' 'passing Over Executor']
['succession Law' 'probate' 'wills' 'evidence' 'appellate Procedure'] ['revocation of Will by Tearing' 'presumption of Revocation Where Will Not Found After Death' 'de Facto Relationship for Intestacy' 'jones V Dunkel Inference' 'fresh Evidence on Appeal' 'revision of Ex Tempore Reasons' 'judicial Bias' 'renunciation of Probate' 'passing Over Executor']

Case Brief

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Procedural Posture

Probate Appeal Concerning Revocation of Will, Claimed Intestacy Entitlement as De Facto Husband, Renunciation of Probate, and Grant of Letters of Administration With Will Annexed / Appeal From Decisions of Einstein J in the Supreme Court Equity Division

Legal Issues

  1. 1 ['Whether the deceased revoked her 31 August 1989 will by tearing it up in 1992 with the intention of revoking it.' 'Whether, if the will was not torn up in 1992, the unavailable original will should be presumed revoked because it was not found after death.' "Whether the appellant was the deceased's de facto husband within the meaning of the Wills, Probate and Administration Act 1898." "Whether the trial judge erred by relying on the appellant's failure to call corroborative witnesses under Jones v Dunkel." "Whether the trial judge's revision of ex tempore reasons was impermissible." 'Whether the trial judge demonstrated actual or apprehended bias.' 'Whether the appellant had renounced probate or was properly passed over as the person to have probate of the will.']

Ratio Decidendi

The appeal failed because the trial judge's critical findings were open on the evidence. The appellant's evidence that the deceased tore up the 1989 will was incredible, inconsistent and uncorroborated, and the circumstances left no room for the missing-will presumption of revocation; the 1989 will remained the deceased's last testamentary instrument. The evidence also supported the finding that the appellant was not the deceased's de facto husband, but occupied a position of influence over her and unconscientiously abused it. The appellant was sufficiently on notice of Jones v Dunkel, the revisions to the ex tempore reasons were permissible, no bias was shown, allegations of perjury were...

Court Disposition

Appeal dismissed with costs.

Orders

  • ['Appeal dismissed with costs.']