Stone & Drabsch v Pinniger [2011] NSWSC 795

Stone & Drabsch v Pinniger [2011] NSWSC 795

The informal document was not expressed as a testamentary instrument; it confirmed the will and communicated wishes about trust property which the testator knew was not subject to disposition by will. The evidence did not establish the testator intended this document to have testamentary effect or to alter/revoke the will. Section 8 of the Succession Act did not apply and probate was granted on the will alone.

Jurisdiction
Australia
Judgment Date
29 July 2011
Procedural Posture
Probate / Succession / Judgment After Hearing of Amended Cross Claim
Outcome
Cross-claim dismissed; probate granted to plaintiffs in solemn form of the 2 May 2008 will.
Legal Topics
['informal Testamentary Documents' 'alteration or Revocation of Wills' 'testamentary Intention' 'section 8 Succession Act']
['succession Law'] ['informal Testamentary Documents' 'alteration or Revocation of Wills' 'testamentary Intention' 'section 8 Succession Act']

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Procedural Posture

Probate / Succession / Judgment After Hearing of Amended Cross Claim

Legal Issues

  1. 1 ['Whether an informal document purported to state the testamentary intention of the deceased and operates as an alteration or partial revocation of the will under section 8 Succession Act 2006']

Ratio Decidendi

The informal document was not expressed as a testamentary instrument; it confirmed the will and communicated wishes about trust property which the testator knew was not subject to disposition by will. The evidence did not establish the testator intended this document to have testamentary effect or to alter/revoke the will. Section 8 of the Succession Act did not apply and probate was granted on the will alone.

Court Disposition

Cross-claim dismissed; probate granted to plaintiffs in solemn form of the 2 May 2008 will.

Orders

  • ['Amended cross-claim dismissed.' 'Grant of probate to plaintiffs in solemn form of the will dated 2 May 2008.' 'Plaintiffs to prepare minutes of order by 4pm 5 August 2011.' 'Liberty to apply on costs if not agreed by 4pm 5 August 2011.']