Estate of Daly - [2012] NSWSC 555

Supreme Court

New South Wales

Medium Neutral Citation: Estate of Daly [2012] NSWSC 555
Hearing dates: In chambers
Decision date: 25 May 2012
Jurisdiction: Equity Division - Probate List
Before: White J
Decision:
Refer to para [28] of judgment.

Catchwords:
WILLS, PROBATE AND ADMINISTRATION - mirror wills prepared for and executed by husband and wife - signatures of both duly witnessed - by mistake husband and wife signed will prepared for the other - probate sought of wife's will - whether rectification by omitting signature of husband - whether order should be made for rectification of document signed by deceased - Succession Act 2006, s 27
WILLS, PROBATE AND ADMINISTRATION - document stated testamentary intentions of the deceased but not validly executed - document admitted as an informal testamentary document pursuant to Succession Act 2006, s 8 - no order for rectification
Legislation Cited: Succession Act 2006
Wills, Probate and Administration Act 1898
Wills Act 1936 (SA)
Cases Cited: In the Estate of Gillespie (Supreme Court of New South Wales, Powell J, 25 October 1991, unreported)
Public Trustee v Estate of Smith (Supreme Court of New South Wales, Hodgson J, 5 November 1993, unreported)
Estate of Hennekam (deceased) [2009] SASC 188; (2009) 104 SASR 289
In the Estate of Blakely (In the Estate of Williams (1984) 36 SASR 423
In the Goods of Hunt (1875) LR 3 P&D 250
In the Estate of Meyer [1908] P 353
In re Petchell (decd) (1943) 46 W.A.L.R. 62
Category: Principal judgment
Parties: Michael James Daly (1st Plaintiff)
Jacques Henri Daly (2nd Plaintiff)
Representation: Counsel:
Solicitors:
Dezarnaulds Basten (Plaintiffs)

File Number(s): 2011/396953

Judgment

HIS HONOUR: This application has been referred to me by the Registrar in Probate. It concerns mirror wills executed by a husband and wife where by mistake, each signed the will prepared for the other. The signatures of both were duly witnessed. Evidently no-one appreciated that the husband and wife had signed the wrong will. This is not an uncommon occurrence. (See e.g. In the Estate of Gillespie (Supreme Court of New South Wales, Powell J, 25 October 1991, unreported) and cases there cited; Public Trustee v Estate of Smith (Supreme Court of New South Wales, Hodgson J, 5 November 1993, unreported); and Estate of Hennekam (deceased) [2009] SASC 188; (2009) 104 SASR 289).

Probate is sought of the wife's will. Her husband predeceased her. The question is whether an order should be made for the rectification of the document signed by the deceased (that is, the will prepared as her husband's will); whether the will prepared in the name of the deceased should be rectified by omitting the signature of her husband and deeming the will to have been signed by the deceased; or whether an order should be made under s 8 of the Succession Act 2006 declaring that the deceased intended that the document prepared for her form her will, and directing that document to be admitted to probate.

The deceased, Eliane Lucie Daly and…

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: [2012] NSWSC 555
Decision Date: 25 May 2012

CaseChat Overview and Summary

The case involved the estate of a deceased person, where a dispute arose over the validity of the wills executed by the deceased husband and wife. The husband and wife had prepared mirror wills for each other but mistakenly signed the will intended for the other. The husband's will was deemed validly executed, but the wife's will was not, as she had mistakenly signed the husband's will. The court was tasked with determining whether the wife's will could be rectified by omitting the husband's signature and whether an order should be made for the rectification of the document signed by the deceased.

The court considered the provisions of the Succession Act 2006, specifically section 27, which deals with the rectification of documents. The court noted that while the document stated the testamentary intentions of the deceased, it was not validly executed as the wife had signed the husband's will instead of her own. The court also considered section 8 of the Succession Act, which allows for the admission of an informal testamentary document if it can be shown that it expressed the deceased's testamentary intentions. However, the court found that the document in question did not meet the criteria for rectification, as it was not a validly executed will.

Ultimately, the court determined that no order should be made for the rectification of the document signed by the deceased. The court held that the wife's will was not validly executed and could not be rectified by omitting the husband's signature. Instead, the court admitted the document as an informal testamentary document pursuant to section 8 of the Succession Act. The court's decision was based on the fact that the document did not meet the criteria for rectification under section 27 of the Succession Act, and therefore could not be admitted as a valid will. The court's decision highlights the importance of ensuring that wills are properly executed and witnessed to avoid disputes over their validity.

Orders