McKinney v Campbell; Estate Campbell [2003] NSWSC 244

McKinney v Campbell; Estate Campbell [2003] NSWSC 244

Based on consistent and uncontradicted affidavit evidence, the court was satisfied both that Alice Margaret Campbell knew and approved the gift to the plaintiff and that the gift was made freely and voluntarily in accordance with s.13(2)(c) of the Wills, Probate and Administration Act 1898. The statutory presumption of invalidity was overcome, rendering the gift valid. No special case was established to depart from the default costs rule and, subject to the defendant’s indemnity costs from the plaintiff’s share, costs were otherwise to lie where they fell.

Jurisdiction
Australia
Judgment Date
03 April 2003
Procedural Posture
Probate Declaration Application / Judgment After Hearing
Outcome
Declaration and orders in favour of the plaintiff; defendant’s costs to be paid out of the plaintiff’s share of the estate on indemnity basis; otherwise no order as to costs.
Legal Topics
['wills and Probate' 'attesting Witnesses' 'validity of Testamentary Gifts' 'costs in Probate Proceedings']
['succession Law' 'equity'] ['wills and Probate' 'attesting Witnesses' 'validity of Testamentary Gifts' 'costs in Probate Proceedings']

Case Brief

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Procedural Posture

Probate Declaration Application / Judgment After Hearing

Legal Issues

  1. 1 ["Whether the testator knew and approved the gift to the plaintiff under the will where the plaintiff's spouse was an attesting witness" 'Whether the gift to the plaintiff was made freely and voluntarily by the testator as required by s.13(2)(c) of the Wills, Probate and Administration Act 1898' 'Whether costs should follow the event or be paid from the estate']

Ratio Decidendi

Based on consistent and uncontradicted affidavit evidence, the court was satisfied both that Alice Margaret Campbell knew and approved the gift to the plaintiff and that the gift was made freely and voluntarily in accordance with s.13(2)(c) of the Wills, Probate and Administration Act 1898. The statutory presumption of invalidity was overcome, rendering the gift valid. No special case was established to depart from the default costs rule and, subject to the defendant’s indemnity costs from the plaintiff’s share, costs were otherwise to lie where they fell.

Court Disposition

Declaration and orders in favour of the plaintiff; defendant’s costs to be paid out of the plaintiff’s share of the estate on indemnity basis; otherwise no order as to costs.

Orders

  • ['Declaration that Alice Margaret Campbell knew and approved of the gift of one quarter of the residue of the estate to the plaintiff in her will dated 22 April 2000.' 'Declaration that the gift was made freely and voluntarily by Alice Margaret Campbell.' 'Order that the gift of one quarter of the residue of the...