Costa v The Public Trustee of NSW

The appeal concerned the validity of an informal document as a last will and testament, brought before the Court of Appeal of New South Wales by the appellants against the Public Trustee of NSW. The central dispute revolved around whether a particular document, not executed in the formal manner prescribed by law, nonetheless represented the deceased's testamentary intentions and was intended by him to be his will, thereby revoking a prior formal will.

The Court of Appeal was required to determine two primary legal issues. Firstly, whether the informal document purported to convey the deceased's testamentary intentions. Secondly, and crucially, whether the deceased intended that this informal document should constitute his last will. This involved an assessment of the deceased's state of mind and his intentions at the time the document was created, in light of the provisions of section 18A of the *Wills Probate and Administration Act 1898* (NSW).

The Court applied principles relating to appeals by way of rehearing, particularly concerning questions of fact and inferences drawn from undisputed written evidence, as contemplated by section 75A of the *Supreme Court Act 1970* (NSW). The reasoning focused on whether the evidence, viewed objectively, demonstrated that the deceased intended the informal document to be his will. The Court found that the deceased did indeed intend the informal document to constitute his last will and testament, and further, that it was intended to revoke his prior formal will dated 12 September 1995.

Consequently, the appeal was allowed. The Court made a declaration that the informal document was intended by the deceased to be his last will and to revoke his earlier will. Probate of the informal document was ordered to be granted to the appellants, with the matter remitted to the Registrar for completion. The costs of the Public Trustee were ordered to be paid out of the deceased's estate.