(a) The Plaintiff's amended Statement of Claim is dismissed.
(b) Probate in solemn form of the deceased's Will and the Codicil, each made on 18 September 2008 is granted to the Defendants.
(c) The matter is remitted to the Registrar to complete the grant.
(d) The Summons by the Plaintiff seeking a family provision order is dismissed.
(e) The Cross-Summons by each of the Defendants seeking a family provision order is dismissed.
(f) The matter is stood over to a mutually convenient date for any argument on costs if the parties are unable to agree.
Catchwords:
ADMINISTRATION AND PROBATE - Plaintiff advances, in the alternative, two informal testamentary documents as the last Will of the deceased - Issue whether these are the documents of the deceased - Neither document disclosed until many months after the death of the deceased - Forensic document examination by single expert of the documents relied upon by the Plaintiff - Plaintiff gives version of events not previously given - Allegation of forgery by Plaintiff not pleaded by the Defendants - Court not satisfied that either document is a document of the deceased or that the deceased intended either to form his Will, or an alteration to his Will, or a full or partial revocation of his Will - Grant of Probate in solemn form of Will and Codicil duly executed.
SUCCESSION - FAMILY PROVISION - The Plaintiff, one of four children of the deceased applies for a family provision order under Chapter 3 of the Succession Act 2006 - The Defendants, two other children of the deceased, also make defensive claim for family provision order in the event that the Plaintiff's Probate proceedings are successful - Whether adequate and proper provision not made in Will and the Codicil of the deceased for the Plaintiff and, if so, the nature and quantum of the provision to be made - Court satisfied adequate and proper provision made.
[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.
Continue reading Bolger v McDermott
Sign in free to access the full text
Details
AGLC
Bolger v McDermott [2013] NSWSC 919
Case
[2013] NSWSC 919
Decision Date
CaseChat Overview and Summary
In the case of Bolger v McDermott, the plaintiff sought to establish two informal testamentary documents as the last will of the deceased, arguing they were either the deceased's will or an alteration or revocation of their formal will. The defendants contested the authenticity and validity of these documents, leading to a complex legal dispute over the deceased's intentions and the validity of the documents presented. The case was heard in the Supreme Court of New South Wales.
The primary legal issues the court had to address were whether the two informal documents presented by the plaintiff were indeed the last will of the deceased, and if so, whether they constituted a valid alteration or revocation of the formal will. The court also had to determine if the defendants had made adequate and proper provision for the plaintiff under the Succession Act 2006. This involved a thorough examination of the circumstances surrounding the creation and presentation of the informal documents, the forensic analysis of the documents, and the testimony of witnesses.
The court conducted a comprehensive analysis of the documents, relying on forensic document examination by a single expert, and considered the plaintiff's new version of events, which was not previously given. The court found that neither document was a testamentary document of the deceased, nor did they reflect the deceased's intentions to alter or revoke their formal will. The court was also not satisfied that the deceased intended either document to form their will or to alter or revoke it. Consequently, the court granted probate in solemn form for the duly executed will and codicil. Additionally, the court ruled that adequate and proper provision had been made for the plaintiff under the Succession Act 2006, dismissing the plaintiff's and the defendants' family provision claims.
In conclusion, the court granted probate for the formal will and codicil, rejected the plaintiff's claims regarding the informal documents, and dismissed both the plaintiff's and the defendants' family provision claims. This decision effectively upheld the validity of the formal will and determined that proper provision had been made for all the children of the deceased.