Public Trustee v New South Wales Cancer Council - the Estate of Rita Lillian McBurney [2002] NSWSC 220

Public Trustee v New South Wales Cancer Council - the Estate of Rita Lillian McBurney [2002] NSWSC 220

The document dated 5 May 1996 satisfied s 18A as an amendment to the deceased's 16 May 1989 will. Its words, including 'I bequeath' and reference to 'my previous Will', indicated testamentary operation; it was signed by the deceased and witnessed by Mrs Metters; the deceased asked Mrs Metters to witness it, said she...

Source-derived case information.

Jurisdiction
Australia
Judgment Date
15 March 2002
Procedural Posture
Probate and Wills Application Under S 18 a of the Wills Probate and Administration Act 1898 Concerning Informal Testamentary Documents / Amended Summons for Declarations and Grant of Probate
Outcome
Orders made generally in terms of paragraphs 1, 2 and 3(a) of the amended summons, with 'constitutes a codicil' changed to 'an amendment'; plaintiff's costs ordered out of the estate on an indemnity basis and defendant's costs ordered out of the estate.
Legal Topics
['informal Testamentary Documents' 'codicil or Amendment to Will' 'testamentary Intention' 'revocation or Amendment of Will' 'probate Costs']
['wills and Estates' 'probate'] ['informal Testamentary Documents' 'codicil or Amendment to Will' 'testamentary Intention' 'revocation or Amendment of Will' 'probate Costs']

Source-derived case record

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Procedural Posture

Probate and Wills Application Under S 18 a of the Wills Probate and Administration Act 1898 Concerning Informal Testamentary Documents / Amended Summons for Declarations and Grant of Probate

Legal Issues

  1. 1 ["Whether the handwritten document dated 5 May 1996 constituted the deceased's will, an amendment of her will, or a revocation of her will under s 18A of the Wills Probate and Administration Act 1898." "Whether the undated handwritten document constituted the deceased's will, an amendment of her will, or a revocation of her will under s 18A of the Wills Probate and Administration Act 1898." 'Whether the document dated 5 May 1996 was merely instructions for preparation of a new will or codicil, or only a stopgap pending a formal will.' 'What costs orders should be made in probate litigation caused by an informal testamentary document.']

Ratio Decidendi

The document dated 5 May 1996 satisfied s 18A as an amendment to the deceased's 16 May 1989 will. Its words, including 'I bequeath' and reference to 'my previous Will', indicated testamentary operation; it was signed by the deceased and witnessed by Mrs Metters; the deceased asked Mrs Metters to witness it, said she was glad she had done it, and said she would put it in the tin with the will; and it was later found in the tin with important formal documents. The Court rejected the defendant's instructions and stopgap arguments, finding on the probabilities that after signing the document the deceased did not again ask to see a solicitor. The undated document did not have testamentary...

Court Disposition

Orders made generally in terms of paragraphs 1, 2 and 3(a) of the amended summons, with 'constitutes a codicil' changed to 'an amendment'; plaintiff's costs ordered out of the estate on an indemnity basis and defendant's costs ordered out of the estate.

Orders

  • ['Declaration under s 18A of the Wills Probate and Administration Act 1898 that the document dated 5 May 1996 constitutes an amendment to the will of the deceased dated 16 May 1989.' 'Declaration that the undated document does not constitute an amendment to the will of the deceased dated 16 May 1989.' 'Probate to be...