SUCCESSION - informal will - s 8, Succession Act 2006 - unexecuted document in form of will - whether intended to form will of deceased - whether deceased intended document "without more" to operate as his will - where deceased gave instructions to solicitor to prepare a new will - where deceased died before executing new will - deceased intended document to operate as his will only upon its execution - probate of informal will refused
COSTS - whether unsuccessful plaintiff in probate action entitled to have costs paid out of estate
Dawn Lynette Bell (Plaintiff) Peter Crewes (Defendant)
Representation:
D Knowles (Plaintiff) G Bateman (Defendant) Bradfield & Scott Lawyers (Plaintiff) Patrick Grimes & Company (Defendant)
File Number(s):
2010/314332
Judgment
HIS HONOUR: These proceedings concern the estate of Bruce William Crewes who died on 17 October 2009 aged 69.
The principal question is whether an unsigned will that had been prepared for the deceased should be admitted to probate pursuant to s 8 of the Succession Act2006. If the document is not admitted to probate, there is a question as to whether probate should be granted of a will duly executed by the deceased and dated 9 July 2004. The original of that will came into the possession of the deceased, but could not be located after his death.
Section 8 of the Succession Act relevantly provides:
" 8 When may the Court dispense with the requirements for execution, alteration or revocation of wills?
Grounds of appeal
[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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Details
AGLC
Bell v Crewes [2011] NSWSC 1159
Case
[2011] NSWSC 1159
Decision Date
CaseChat Overview and Summary
In Bell v Crewes, the court was asked to determine the validity of an informal will, and whether the estate of the deceased, Mr Bell, should be distributed in accordance with that will. The court was also asked to determine whether the plaintiff, who had unsuccessfully sought to have the will admitted to probate, was entitled to costs from the estate. Mr Bell had drafted an informal will but had instructed his solicitor to prepare a new will. He died before the new will was executed. The defendant, Mrs Crewes, sought to have the informal will admitted to probate, but the plaintiff opposed her application.
The primary legal issues were whether the informal document was intended to form the will of the deceased, and whether the deceased intended the document to operate as his will "without more". The court held that the informal document was not intended to form the will of the deceased, and that the deceased intended the document to operate as his will only upon its execution. The court also held that the plaintiff was not entitled to costs from the estate.
The court found that the deceased had intended the document to operate as his will only upon its execution. The court found that the deceased had not intended the document to operate as his will "without more". The court held that the informal will was invalid, and that the estate should be distributed in accordance with the intestacy rules. The court also found that the plaintiff was not entitled to costs from the estate, as the plaintiff had not succeeded in their action to have the will admitted to probate.
The court refused to admit the informal will to probate, and ordered that the estate be distributed in accordance with the intestacy rules. The court also ordered that the plaintiff's costs be paid from the estate of the defendant, Mrs Crewes.