Cahill v Rhodes/Rhodes v Cahill [2002] NSWSC 561

Cahill v Rhodes/Rhodes v Cahill [2002] NSWSC 561

The court was not satisfied the presumption of revocation by destruction of the lost Will was rebutted, given changing relationships and uncertainties, and thus found the deceased died intestate with Letters of Administration to be granted to his mother.

Jurisdiction
Australia
Judgment Date
10 July 2002
Procedural Posture
Probate Dispute / Judgment at First Instance
Outcome
Deceased died intestate; Grant of Letters of Administration to his mother; Proceedings seeking probate of earlier Will dismissed; Costs paid from estate.
Legal Topics
['probate of a Lost Will' "presumption of Destruction on Testator's Death" 'effect of Section 18 a Wills, Probate and Administration Act 1898' 'evidence for Probate of Lost Will' 'payment of Costs in Probate Suits']
['succession' 'wills and Probate'] ['probate of a Lost Will' "presumption of Destruction on Testator's Death" 'effect of Section 18 a Wills, Probate and Administration Act 1898' 'evidence for Probate of Lost Will' 'payment of Costs in Probate Suits']

Case Brief

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Procedural Posture

Probate Dispute / Judgment at First Instance

Legal Issues

  1. 1 ["Whether the deceased's lost 1999 Will should be admitted to probate" 'Whether the presumption of destruction with intent to revoke is rebutted' 'Entitlement to grant of Letters of Administration upon intestacy']

Ratio Decidendi

The court was not satisfied the presumption of revocation by destruction of the lost Will was rebutted, given changing relationships and uncertainties, and thus found the deceased died intestate with Letters of Administration to be granted to his mother.

Court Disposition

Deceased died intestate; Grant of Letters of Administration to his mother; Proceedings seeking probate of earlier Will dismissed; Costs paid from estate.

Orders

  • ['Declare that Daniel John Cahill died on 11 April 2000, intestate.' 'Grant Letters of Administration to Robyn Denise Cahill, subject to compliance with Rules of Court.' 'Proceedings 105651 of 2001 dismissed.' 'Costs of plaintiff and defendant in each proceeding be paid out of estate.']