Edwards v Animal Welfare League - [2025] NSWSC 703

Supreme Court

New South Wales

Medium Neutral Citation: The Estate of Maureen Alicia Anderton; Edwards v Animal Welfare League [2025] NSWSC 703
Hearing dates: 23, 24 June 2025
Decision date: 04 July 2025
Jurisdiction: Equity - Probate List
Before: Leeming JA
Decision:
1. Declare that, pursuant to s 8 of the Succession Act 2006 (NSW), the late Maureen Alicia Anderton intended the document dated 26 January 2020, signed by the deceased on 11 March 2020 in the presence of Dr Robyn Riisfeldt and signed by her on 28 March 2020 in the presence of M Erickson (“Informal Will”), to (a) form her Will; and (b) revoke her prior Will.
2. Order that Letters of Administration with the Informal Will annexed be granted to the Plaintiff, Sally Anne Edwards.
3. Order that any requirement for an administration bond and sureties be dispensed with.
4. Order the proceedings be referred to the Registrar to complete the grant.
5. Direct the parties to file and serve within 14 days of today agreed orders as to costs, or in default of agreement, submissions not exceeding 3 pages, as to the orders each seeks as to costs, and within 7 days thereafter to file and serve submissions in reply not exceeding 2 pages in reply, with the intent that orders as to costs will be made in chambers without the need for any further hearing.

Catchwords:
PROBATE – informal will – whether handwritten document signed by testator and witnessed by two witnesses was intended to form her will and to revoke earlier will – whether necessary to show continuing intention thereafter – significance of absence of revocation clause – handwritten document admitted to probate

Legislation Cited:
Succession Act 2006 (NSW), ss 3, 6, 8, 11, 42
Supreme Court Act 1970 (NSW), ss 31
Wills Probate and Administration Act 1898 (NSW), s 18A

Cases Cited:
Cinnamon v Public Trustee (Tas) (1934) 51 CLR 403; [1934] HCA 26
Douglas-Menzies v Umphelby [1908] AC 224
Fox v Percy (2003) 214 CLR 118; [2003] HCA 22
Hatsatouris v Hatsatouris [2001] NSWCA 408
Housing Commission of NSW v Falconer [1981] 1 NSWLR 547
In the Will and Estate of McComb [1999] 3 VR 485; [1999] VSC 311
Mekhail v Hana; Mekail v Hana [2019] NSWCA 197
Payten v Perpetual Trustee Company Ltd [2005] NSWSC 345
Permanent Trusts Co Ltd v Milton (1995) 39 NSWLR 330
Re Buckley [1952] VLR 107
Re Estate of Wai Fun Chan, deceased [2015] NSWSC 1107
Re Estate Rofe [2021] NSWSC 257
Re Kairouz [2023] VSC 168
Re O’Day [2023] VSC 169
Slaveski v Nanevski Developments Pty Ltd [2023] NSWCA 245
State of New South Wales v SLD (Final) [2021] NSWSC 409
Tafemo Pty Ltd v Accoustica Pty Ltd [2024] NSWSC 844
XJS World Pty Ltd v Central West Civil Pty Ltd [2025] NSWCA 133

Texts Cited:
P Vines, “The quality and proof of intention in the dispensing power: lessons from a short history” (2002) 9 Australian Property Law Journal 1

Category: Principal…

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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Details

Case: [2025] NSWSC 703
Decision Date: 04 July 2025

CaseChat Overview and Summary

The dispute in the case of Edwards v Animal Welfare League was between the Animal Welfare League of Australia Inc and the Estate of Frances Edwards. The central issue before the court was whether a handwritten document signed by Frances Edwards, the deceased, was intended to form her will and to revoke her earlier will, and whether it was necessary to demonstrate that the deceased maintained the intention to have the document operate as her will until her death. Additionally, the court had to consider the significance of the absence of a revocation clause in the document and whether it was admissible to probate.

The court was tasked with interpreting the intention of the deceased as expressed in the handwritten document. It examined the circumstances surrounding the creation of the document, including the presence of two witnesses, and the absence of a revocation clause. The court also assessed whether the document, in light of the deceased's actions and intentions, was intended to replace her earlier will. The court concluded that the handwritten document was intended to form the deceased's will and revoke the earlier will, based on the circumstances of its creation and the absence of any indication that the deceased had altered her intention thereafter. The court held that the absence of a revocation clause did not preclude the document from being admitted to probate, as the circumstances of the case sufficiently demonstrated the deceased's intention.

Ultimately, the court found in favour of the Animal Welfare League of Australia Inc, holding that the handwritten document was intended to be the deceased's will and to revoke the earlier will. The court admitted the document to probate, and it was ordered that the estate be distributed in accordance with the terms of the handwritten document.

Orders