The Estate of Colleen McCullough [2018] NSWSC 1126

The Estate of Colleen McCullough [2018] NSWSC 1126

The Court found that Exhibit 5 was signed and Exhibit 6 was initialled by the deceased on 24 October 2014, that each embodied her testamentary intention to replace the dispositive page of the Oklahoma Will and leave her estate to the Defendant, and that coercion, undue influence or lack of volition was not established. Exhibit D did not satisfy the requirements for a codicil reviving the Oklahoma Will under s 15 of the Wills Act 2012 (Norfolk Island) and was not otherwise effective to revoke the 24 October 2014 disposition. For costs, the second probate exception applied because the circumstances reasonably required investigation, so each party should bear his or her own costs.

Jurisdiction
Australia
Judgment Date
20 July 2018
Procedural Posture
Equity Probate List Proceedings Concerning the Estate of Dr Colleen Mc Cullough / Principal Judgment After Hearing
Outcome
The Defendant established that Exhibit 5 and Exhibit 6 were effective informal testamentary dispositions made on 24 October 2014; Exhibit D was not effective as a codicil; each party was to bear his or her own costs; parties were given an opportunity to bring in short minutes of order.
Legal Topics
['informal Testamentary Documents' 'testamentary Intention' 'undue Influence and Coercion' 'revocation and Revival of Wills' 'codicils' 'probate Litigation Costs']
['succession' 'probate' 'costs'] ['informal Testamentary Documents' 'testamentary Intention' 'undue Influence and Coercion' 'revocation and Revival of Wills' 'codicils' 'probate Litigation Costs']

Case Brief

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Procedural Posture

Equity Probate List Proceedings Concerning the Estate of Dr Colleen Mc Cullough / Principal Judgment After Hearing

Legal Issues

  1. 1 ['Whether either Exhibit 5 or Exhibit 6 constituted a valid informal testamentary disposition by the deceased.' 'Whether the deceased signed or initialled Exhibit 5 and Exhibit 6 on 24 October 2014 or signed Exhibit 5 on 17 January 2015.' 'Whether the deceased was coerced or pressured by the Defendant into signing or initialling Exhibit 5 or Exhibit 6.' 'Whether Exhibit D was effective as a codicil under s 15 of the Wills Act 2012 (Norfolk Island) to revive the Oklahoma Will or revoke any disposition made on 24 October 2014.' 'Whether costs should follow the event or be dealt with under probate exceptions stated in Re Hodges; Shorter v Hodges (1988) 14 NSWLR 698.']

Ratio Decidendi

The Court found that Exhibit 5 was signed and Exhibit 6 was initialled by the deceased on 24 October 2014, that each embodied her testamentary intention to replace the dispositive page of the Oklahoma Will and leave her estate to the Defendant, and that coercion, undue influence or lack of volition was not established. Exhibit D did not satisfy the requirements for a codicil reviving the Oklahoma Will under s 15 of the Wills Act 2012 (Norfolk Island) and was not otherwise effective to revoke the 24 October 2014 disposition. For costs, the second probate exception applied because the circumstances reasonably required investigation, so each party should bear his or her own costs.

Court Disposition

The Defendant established that Exhibit 5 and Exhibit 6 were effective informal testamentary dispositions made on 24 October 2014; Exhibit D was not effective as a codicil; each party was to bear his or her own costs; parties were given an opportunity to bring in short minutes of order.

Orders

  • ['The Court declared in substance that Colleen McCullough initialled Exhibit 6 and signed Exhibit 5 on 24 October 2014 intending those documents to replace the dispositive page of the Oklahoma Will.' 'The Court held that Exhibit D was not effective as a codicil reviving the revoked Oklahoma Will.' 'Each party should...