Stanley v Mechler [2004] NSWSC 58

Stanley v Mechler [2004] NSWSC 58

The deceased intended the document he signed on 3 May 2002 to operate as his will despite the absence of witnesses: he had instructed a solicitor, caused the document to be prepared, read and signed it, sealed it, and attempted to have the solicitor arrange witnesses, apparently believing the document would be effective. The Artarmon property cross-claims failed because the property had been purchased and dealt with under an express trust structure accepted and acted upon by the defendant. Rectification failed because the informal will reflected the instructions the deceased gave to the solicitor.

Jurisdiction
Australia
Judgment Date
18 February 2004
Procedural Posture
Probate Proceedings Concerning an Informal Will and Cross Claims Relating to Trust Property and Rectification / Determination of Further Amended Summons, Cross Claim and Further Cross Claim
Outcome
Declaration and probate order made for the plaintiff; cross-claim and further cross-claim dismissed; parties invited to make submissions as to costs.
Legal Topics
['informal Will' 'testamentary Intention' 'grant of Probate' 'express Trust' 'rectification of Will']
['probate' 'succession' 'trusts'] ['informal Will' 'testamentary Intention' 'grant of Probate' 'express Trust' 'rectification of Will']

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Procedural Posture

Probate Proceedings Concerning an Informal Will and Cross Claims Relating to Trust Property and Rectification / Determination of Further Amended Summons, Cross Claim and Further Cross Claim

Legal Issues

  1. 1 ['Whether the unwitnessed document signed by the deceased on 3 May 2002 constituted his will under s 18A of the Wills Probate and Administration Act 1898.' 'Whether the informal will revoked former wills or should be admitted to probate.' 'Whether the defendant could obtain declarations that the Artarmon property was held beneficially by the deceased and the defendant as tenants in common in equal shares free of trust obligations, or that the deceased held a half share on trust for her.' 'Whether the informal will should be rectified to give the defendant a right to reside at the Lane Cove home for as long as she wished.']

Ratio Decidendi

The deceased intended the document he signed on 3 May 2002 to operate as his will despite the absence of witnesses: he had instructed a solicitor, caused the document to be prepared, read and signed it, sealed it, and attempted to have the solicitor arrange witnesses, apparently believing the document would be effective. The Artarmon property cross-claims failed because the property had been purchased and dealt with under an express trust structure accepted and acted upon by the defendant. Rectification failed because the informal will reflected the instructions the deceased gave to the solicitor.

Court Disposition

Declaration and probate order made for the plaintiff; cross-claim and further cross-claim dismissed; parties invited to make submissions as to costs.

Orders

  • ['Declaration in terms of paragraph 1 of the further amended summons.' 'Order in terms of paragraph 2 of the further amended summons.' 'Matter referred to the Registrar to complete the grant of probate.' 'Cross-claim dismissed.' 'Further cross-claim dismissed.' 'Parties invited to make submissions as to costs.']