Burge v Burge

The appeal concerned a dispute over the grant of probate for an estate valued in excess of $100,000, where the majority of assets were located in overseas bank accounts, with assets within New South Wales valued at less than $100,000. The executrix had taken out probate, thereby accepting the trusts in the will, including those pertaining to foreign property. The primary legal issue was whether leave to appeal was required in these circumstances. A secondary issue involved an informally drafted testamentary document, which had been amended, signed, and dated by the deceased but not witnessed. The court was required to determine whether the deceased intended this document to form his will, given its separate location from other testamentary documents, including a validly executed will, and the deceased's awareness of the witnessing requirements.

The court held that leave to appeal was not required in this instance. Regarding the informal testamentary document, the primary judge had not been satisfied that the deceased intended it to constitute his will. This conclusion was supported by the fact that the document was found separately from the deceased's other testamentary documents, including a validly executed will. Furthermore, evidence indicated that the deceased had a habit of signing and dating documents that were never sent, and he was aware of the legal requirement for a will to be witnessed.

Consequently, the appeal was dismissed. The parties were directed to supply any agreed order as to costs within 14 days, or, failing agreement, to each supply proposed orders with supporting submissions not exceeding five pages within the same timeframe.