Mortimer v David; Estate Dawn Audrey Day deceased [2005] NSWSC 1166

Mortimer v David; Estate Dawn Audrey Day deceased [2005] NSWSC 1166

The plaintiffs were permitted to bring the proceeding because the earlier grant had been made in their absence in circumstances attributable to their solicitor. On the merits, the propounder of the will did not discharge the onus of establishing that the will had been lost by the synagogue or one of its members. On the balance of probabilities the deceased obtained possession of the will and it was last seen in her possession by her sons; because it was not found after her death, the presumption that she destroyed it with an intention to revoke it was not rebutted. The existing grant with a copy will annexed was therefore revoked and administration on intestacy was granted to the...

Jurisdiction
Australia
Judgment Date
17 November 2005
Procedural Posture
Probate Proceeding for Revocation of Letters of Administration With a Copy of a Will Annexed and for Letters of Administration on Intestacy / Final Judgment After Hearing
Outcome
Letters of administration with a copy of the will annexed revoked; letters of administration on intestacy granted to the plaintiffs as next of kin.
Legal Topics
['revocation of Letters of Administration' 'lost Will' 'presumption of Revocation' 'letters of Administration With Will Annexed' 'letters of Administration on Intestacy' 'solemn Form and Common Form Grants' 'setting Aside Judgment or Grant Made in Absence of a Party' 'estoppel by Judgment']
['probate' 'wills and Estates' 'civil Procedure'] ['revocation of Letters of Administration' 'lost Will' 'presumption of Revocation' 'letters of Administration With Will Annexed' 'letters of Administration on Intestacy' 'solemn Form and Common Form Grants' 'setting Aside Judgment or Grant Made in Absence of a Party' 'estoppel by Judgment']

Case Brief

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Procedural Posture

Probate Proceeding for Revocation of Letters of Administration With a Copy of a Will Annexed and for Letters of Administration on Intestacy / Final Judgment After Hearing

Legal Issues

  1. 1 ['Whether letters of administration with a copy of the 2 December 1997 will annexed should be revoked.' 'Whether the 2 December 1997 will was lost or was last traced to the deceased and presumed revoked by destruction.' 'Whether the evidence established on the balance of probabilities that the deceased obtained possession of the will before death.' 'Whether the plaintiffs were bound by the earlier revocation proceedings or whether the grant made in their absence could be set aside.']

Ratio Decidendi

The plaintiffs were permitted to bring the proceeding because the earlier grant had been made in their absence in circumstances attributable to their solicitor. On the merits, the propounder of the will did not discharge the onus of establishing that the will had been lost by the synagogue or one of its members. On the balance of probabilities the deceased obtained possession of the will and it was last seen in her possession by her sons; because it was not found after her death, the presumption that she destroyed it with an intention to revoke it was not rebutted. The existing grant with a copy will annexed was therefore revoked and administration on intestacy was granted to the...

Court Disposition

Letters of administration with a copy of the will annexed revoked; letters of administration on intestacy granted to the plaintiffs as next of kin.

Orders

  • ['Order that letters of administration with a copy of the will dated 2 December 1997 annexed granted on 10 May 2004, be revoked and that the original grant be deposited in the Registry.' 'Order that letters of administration of the estate of the deceased be granted to the plaintiffs as next of kin of the deceased.'...