The Court: (a) Declares that it is satisfied that the 2012 document, being Ex. B in these proceedings, purports to state the testamentary intentions of the deceased, and that it has not been executed in accordance with Part 2.1 of the Succession Act 2006. (b) Declares that it is not satisfied that the 2012 document forms the Will of the deceased and that the deceased intended it to form his Will. (c) Declares that it is not satisfied that the 2012 document forms an alteration to the Will of the deceased, and that the deceased intended it to form an alteration to his Will. (d) Declares that it is not satisfied that the 2012 document forms a full, or partial, revocation of the 1999 Will, and that the deceased intended it to be a full or partial revocation of the 1999 Will. (e) Orders that the oral application to amend the Statement of Claim be refused. (f) Orders that the Statement of Claim be dismissed. (g) Declares that the Probate granted by the Court on 26 September 2014, in respect of the Will of Michael Bechara be taken to be a grant in solemn form. (h) Stands over to a mutually convenient date any argument on the question of costs. (i) Orders that the Exhibits should be dealt with in accordance with the Uniform Civil Procedure Rules 2005.
Catchwords:
SUCCESSION - informal testamentary document - no dispute that 2012 document not executed in accordance with s 6 Succession Act 2006 - Dispute that the 2012 document purports to state the testamentary intentions of a deceased - Whether Court satisfied that the deceased intended the 2012 document to form a Will, an alteration of a Will or a full or partial revocation of a Will – Court not satisfied.
[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.
[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.
[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.
Consideration
[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.
[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.
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AGLC
Bechara v Bechara [2016] NSWSC 513
Case
[2016] NSWSC 513
Decision Date
CaseChat Overview and Summary
In the matter of Bechara v Bechara, the court was tasked with determining the testamentary intentions of the deceased. The primary dispute between the parties centred on an informal document created in 2012, which the parties agreed was not executed in accordance with section 6 of the Succession Act 2006. The key question before the court was whether this document could be recognised as the testamentary intention of the deceased, either as a Will, an alteration of a Will, or a revocation of a Will.
The court examined the circumstances surrounding the creation and content of the 2012 document, focusing on whether it could be reasonably interpreted as reflecting the deceased's intentions regarding their estate. The court considered the lack of formalities, the context in which the document was created, and the absence of any clear indication that the deceased intended the document to serve as their Will or to alter or revoke a previous Will. Ultimately, the court found that it could not be satisfied that the deceased intended the 2012 document to form a Will, an alteration of a Will, or a full or partial revocation of a Will.
Given the court's determination, it was unable to recognise the 2012 document as legally binding in terms of the deceased's testamentary intentions. The court did not grant the relief sought by the parties regarding the 2012 document and left the estate to be distributed according to the intestacy rules. The final orders of the court did not recognise the 2012 document as having any legal effect in determining the distribution of the deceased's estate.