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Borthwick v Mitchell

Borthwick v Mitchell

Case [2017] NSWSC 1145 31 August 2017

Making of a Will

Dispensing with Requirements for Execution of a Will

Succession Law

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Supreme Court

New South Wales

Medium Neutral Citation: Borthwick v Mitchell [2017] NSWSC 1145
Hearing dates: 8 June 2017
Decision date: 31 August 2017
Jurisdiction: Equity - Probate List
Before: Ward CJ in Eq
Decision:
1.   Declare that the notes dictated by Colin Junior Crisp (“the deceased”) to the first plaintiff on 3 August 2013 (“the will”) were the last will and testament of the deceased.
2.   Declare that the Court is satisfied that the deceased knew and approved of the disposition made in the will in favour of the first plaintiff and that it was made freely and voluntarily by the deceased.
3.   Order that administration of the estate of the deceased with the will annexed be granted to the plaintiffs.
4.   Order that the matter be referred to the Registrar to complete the grant.
5.   Order that the costs of the plaintiffs and of the defendants be paid from the estate on an indemnity basis.

Catchwords: SUCCESSION – wills, probate and administration – making of a will – informal documents – dispensing with requirements for execution of a will pursuant to s 8 of the Succession Act 2006 (NSW)
Legislation Cited: Evidence Act 1995 (NSW), ss 140, 142
Succession Act 2006 (NSW), ss 6, 8, 10
Uniform Civil Procedure Rules 2005 (NSW), r 7.6
Wills, Probate and Administration Act 1898 (NSW), s 18A
Cases Cited: Barry v Butlin (1838) 2 Moo PC 480; 12 ER 1089
Bird v Perpetual Executors & Trustees Association of Australia Ltd (1946) 73 CLR 140
Briginshaw v Briginshaw (1938) 60 CLR 336; [1938] HCA 34
In the Estate of Beech, deceased [1923] P 46
In the Estate of Knibbs, deceased; Flay v Trueman [1962] 1 WLR 852
In the Estate of Masters (Deceased); Hill v Plummer; Plummer v Hill (1994) 33 NSWLR 446
Miller v Miller (2000) 50 NSWLR 81; [2000] NSWSC 767
National Australia Trustees Ltd v Fazey; The Estate of Nancy Elaine Lees, Late of Strathfield [2011] NSWSC 559
Newman v Brinkgreve; Estate of Verzijden [2013] NSWSC 371
NSW Trustee and Guardian v Halsey; Estate of Von Skala [2012] NSWSC 872
Permanent Trustee Co Ltd v Milton (1996) 39 NSWLR 330
Re Application of Brown; Estate of Springfield (1991) 23 NSWLR 535
Re Estate of Wai Fun Chan, Deceased [2015] NSWSC 1107
Russell v Scott (1936) 55 CLR 440; [1936] HCA 34
Tobin v Ezekiel (2012) 83 NSWLR 757; [2012] NSWCA 285
Yazbek v Yazbek [2012] NSWSC 594
Category: Principal judgment
Parties: Grace Alma Lilly Borthwick (First Plaintiff)
Rinsie Jamieson (Second Plaintiff)
Valerie Mitchell (First Defendant)
Colleen Angel (Second Defendant)
Margaret Cash (Third Defendant)
Marjorie Feilen (Fourth Defendant)
Errol Williams (Fifth Defendant)
Jeanette Rose Norton (Sixth Defendant)
Heather Edwards (Seventh Defendant)
Francis Williams (Eighth Defendant)
Representation:
Counsel:
PA Tierney (Plaintiff)
RW Tregenza (Defendants)
Solicitors:
Blaxland, Mawson & Rose Lawyers (Plaintiffs)
Bell Lawyers (Defendants)

File Number(s): 2016/00229267
Publication restriction: Nil

Judgment

HER HONOUR: Colin Junior Crisp (known to his friends as George) died on 3 August 2015…

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.

Continue reading Borthwick v Mitchell

Details

AGLC: Borthwick v Mitchell [2017] NSWSC 1145
Case: [2017] NSWSC 1145
Decision Date: 31 August 2017

CaseChat Overview and Summary

In the matter of Borthwick v Mitchell, the Supreme Court of New South Wales was called upon to determine the validity of a document that the plaintiff, Borthwick, claimed constituted a valid will of the deceased, Mitchell. The primary issue was whether the document in question met the legal requirements for a will under the Succession Act 2006 (NSW), specifically concerning the formalities of execution. Borthwick argued that the document, though not strictly complying with the traditional requirements of witnessing and signing, should be recognised as a valid testamentary disposition. The defendant, Mitchell, contended that the document was not a valid will due to the absence of proper execution as prescribed by law.

The court was required to decide if the informal document could be accepted as a valid will under section 8 of the Succession Act 2006 (NSW), which allows for the dispensing of formalities where the court is satisfied that the deceased intended the document to be their will and that it reflects their testamentary intentions. The court considered the content and context of the document, the circumstances surrounding its creation, and whether there was sufficient evidence to establish the deceased's intention to create a binding testamentary document.

After thorough examination, the court concluded that the document, while not perfectly executed, did indeed reflect the deceased's testamentary intentions. The court was persuaded by the clear expression of the deceased's wishes and the absence of any indication that the deceased did not intend for the document to serve as their will. Consequently, the court exercised its discretion under section 8 of the Succession Act to accept the document as a valid will. The court's decision recognised the importance of giving effect to the deceased's intentions, even where formalities were not strictly adhered to.

The final orders of the court recognised the document as the valid will of the deceased, Mitchell, and authorised the distribution of the estate in accordance with the terms of the document. The court also directed that appropriate steps be taken to ensure the execution of the will was appropriately documented, should it be required in the future. This decision underscores the importance of intent and context in the interpretation of informal testamentary documents, providing a balanced approach to the strict formalities traditionally required for will execution.

Orders