Burnside v Mulgrew & Anor; Re the Estate of Doris Grabrovaz [2007] NSWSC 550
HEARING DATE(S):
24, 26 & 27 April 2007
JURISDICTION:
Equity Division Probate List
JUDGMENT OF:
Brereton J
EX TEMPORE JUDGMENT DATE:
27 April 2007
DECISION:
Find for earlier Will. Plaintiff’s costs out of estate. No order as to first defendant’s costs.
CATCHWORDS:
WILLS – Probate – where forgery alleged - where one attesting witness denies due execution– whether presumption of due execution applies where testator’s signature is disputed – onus of proof – handwriting evidence – where court not affirmatively satisfied of forgery but left unsatisfied that signature is testator’s – COSTS – Probate – exception to general rule – case for inquiry.
June Eveline Burnside (plaintiff) Lina Angela Mulgrew (first defendant) Olive Brown (second defendant)
FILE NUMBER(S):
SC 100470/06
COUNSEL:
Mr J E Armfield (plaintiff & second defendant) Mr M V Sahade (defendant)
SOLICITORS:
SBA Lawyers (plaintiff & second defendant) Oliveri Lawyers (first defendant)
IN THE SUPREME COURT OF NEW SOUTH WALES EQUITY DIVISION PROBATE LIST
BRERETON J
Friday, 27 April 2007
100470/06 June Eveline Burnside v Lina Angela Mulgrew & Anor; the Estate of Doris Miriam Ivy Grabrovaz
JUDGMENT (ex tempore)
1 HIS HONOUR: The deceased Doris Miriam Ivy Grabrovaz died on 27 August 2005, leaving property in New South Wales comprising an estate of almost two and a half million dollars. The plaintiff June Eveline Burnside, a friend of the deceased for over 50 years, claims probate of a Will apparently made by the deceased on 13 December 2004, by which she appointed Mrs Burnside her executrix, and gave to her such furniture, contents and effects as she might choose, and also half the residuary estate, the other half being left to the deceased’s niece, Olive Brown. The defendant/cross-claimant, Lina Angela Mulgrew, a carer…
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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AGLC
Burnside v Mulgrew [2007] NSWSC 550
Case
[2007] NSWSC 550
Decision Date
CaseChat Overview and Summary
The matter before the court involved a dispute over the validity of a will, where the testator's signature was contested by one of the attesting witnesses. The case was heard in the Supreme Court of New South Wales, with the appellant, Burnside, challenging the decision of the respondent, Mulgrew, who had admitted the will to probate. The primary issue for the court was to determine whether the presumption of due execution of the will applied in light of the attesting witness's denial of the testator's signature. The court had to consider the onus of proof and the admissibility of handwriting evidence in assessing the authenticity of the signature.
The court examined the principles of due execution and the presumptions that apply in probate cases. It found that where a testator's signature is disputed, the onus of proof shifts to the party asserting due execution to demonstrate that the will was properly executed. The court considered the evidence provided, including expert handwriting analysis, and determined that while it was not affirmatively satisfied that the signature was a forgery, it was also not satisfied that the signature was indeed that of the testator. This left the court in a position where it could not confirm the will's validity based on the evidence presented. The court held that the case warranted an inquiry into the circumstances surrounding the execution of the will.
The court concluded that due to the uncertainty surrounding the authenticity of the testator's signature, it was not appropriate to admit the will to probate at that time. It further held that an exception to the general rule applied in this instance, allowing for an order that an inquiry be held to further investigate the matter. The court's final order was that the application for probate be dismissed, and that an inquiry be conducted to determine the validity of the will. This decision highlighted the importance of clear evidence in establishing the due execution of a will and the court's duty to ensure that any doubts regarding the authenticity of a signature are thoroughly investigated.