Estate D M Edwards: Treacey v Edwards [2000] NSWSC 846

Estate D M Edwards: Treacey v Edwards [2000] NSWSC 846

The audio tape falls within the definition of 'document' in s 21 of the Interpretation Act 1987 (NSW) and, on the evidence, the deceased intended it along with the 1996 will to constitute his testamentary intentions. Therefore, s 18A permits both the will and the tape to be admitted to probate. Alternatively, the requirements for incorporation by reference are met, allowing the audio tape to be incorporated into the will.

Jurisdiction
Australia
Judgment Date
18 August 2000
Procedural Posture
Probate / Application for Grant of Probate and Admission of an Audio Tape to Probate
Outcome
Probate granted of the will dated 2 June 1996 in common form to the plaintiffs, and the audio tape admitted to probate under s 18A of the Wills, Probate and Administration Act 1898 (NSW). Plaintiffs' costs ordered to be paid out of the estate on an indemnity basis.
Legal Topics
['admissibility of Audio Tape as Testamentary Document' 'revocation of Wills' 'doctrine of Dependent Relative Revocation' 'incorporation by Reference' 'section 18 a Dispensing Power']
['succession Law' 'wills and Estates'] ['admissibility of Audio Tape as Testamentary Document' 'revocation of Wills' 'doctrine of Dependent Relative Revocation' 'incorporation by Reference' 'section 18 a Dispensing Power']

Case Brief

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Procedural Posture

Probate / Application for Grant of Probate and Admission of an Audio Tape to Probate

Legal Issues

  1. 1 ['Whether the 1996 will revoked the 1993 will unconditionally' 'Whether an audio tape can be admitted to probate under s 18A of the Wills, Probate and Administration Act 1898 (NSW)' 'Whether an audio tape can be incorporated by reference into a formal will']

Ratio Decidendi

The audio tape falls within the definition of 'document' in s 21 of the Interpretation Act 1987 (NSW) and, on the evidence, the deceased intended it along with the 1996 will to constitute his testamentary intentions. Therefore, s 18A permits both the will and the tape to be admitted to probate. Alternatively, the requirements for incorporation by reference are met, allowing the audio tape to be incorporated into the will.

Court Disposition

Probate granted of the will dated 2 June 1996 in common form to the plaintiffs, and the audio tape admitted to probate under s 18A of the Wills, Probate and Administration Act 1898 (NSW). Plaintiffs' costs ordered to be paid out of the estate on an indemnity basis.

Orders

  • ['Probate of the will of the deceased dated 2 June 1996 in common form granted to the plaintiffs.' 'Audio tape admitted to probate under s 18A of the Wills, Probate and Administration Act 1898 (NSW).' "Plaintiffs' costs to be paid out of the estate on an indemnity basis."]