Estate of Johnston - [2010] NSWSC 382

CITATION: Estate of Johnston [2010] NSWSC 382

HEARING DATE(S): 1 April 2010

JUDGMENT DATE :
30 April 2010

JURISDICTION: Equity

JUDGMENT OF: Slattery J at 1

DECISION: 1. Declare that the informal testamentary document signed by the deceased and dated 14 April 2005 to be the last will of the deceased within the meaning of s 8 Succession Act 2006 (NSW).
2. Grant Letters of Administration cta of the will to Christine Gay Belcher, daughter of the deceased, for the use and benefit of the nominated executor, Dulcie Adeline Johnston, limited until the said Dulcie Adeline Johnston recovers from her disability.
3. Order the administration bond be dispensed with.
4. Order the costs of the plaintiff on the indemnity basis be paid out of the estate of the deceased.
5. Note that no order is made as to the costs of Paul Ronald Johnston to the intent he bear his own costs of the proceedings.

CATCHWORDS: SUCCESSION - wills, probate and administration - probate and letters of administration - whether an informal document was intended to form the testator’s will - sufficient evidence for the Court to dispense under s 8 (2) of the Succession Act with the usual requirements for the execution of a valid will - Letters of Administration cta of the will granted to plaintiff due to the nominated executrix's mental incapacity

LEGISLATION CITED: Probate and Administration Act 1898 (NSW), ss 18A, 74(c)
Succession Act 2006 (NSW), ss 6,8
Supreme Court Rules 1970 (NSW), Part 78 r 24A (6) (a), r 34E (2)(a)
Wills Probate and Administration Act 1898 (NSW), s 7

CATEGORY: Principal judgment

CASES CITED: Hatsatouris v Hatsatouris [2001] NSWCA 408
Re Estate of Masters; Hill v Plummer (1994) 33 NSWLR 446

PARTIES: Plaintiff/Applicant: Christine Gay Belcher

FILE NUMBER(S): SC 115021/09

COUNSEL: Plaintiff/Applicant: Mr L Ellison SC

SOLICITORS: Plaintiff/Applicant: Deutsch Miller

IN THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION

SLATTERY J

FRIDAY 30 APRIL 2010

115021/09 ESTATE OF RONALD GEORGE JOHNSTON – APPLICATION OF CHRISTINE GAY BELCHER

JUDGMENT

1 HIS HONOUR:

Introduction

2 Ronald George Johnston created an informal testamentary document on 14 April 2005. As the author of this informal document, Mr Johnston will be referred to in this judgment as “the testator”. As he died on 28 January 2009, these proceedings must be dealt with under the Succession Act 2006.

3 This informal document was not witnessed in compliance with the formal requirements of s 6(1)(c) Succession Act 2006 (NSW) in that only one of the two required witnesses executed part of the document. The principal issue for determination in this case is whether this informal document was intended to form the testator’s will. If the Court finds that the informal document was so intended, the Court can dispense with the usual requirements for the execution of a valid will: s 8 (2) of the Succession Act.

4 If the Court dispenses with the usual requirements for execution of the informal document a second issue arises. The second issue…

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: [2010] NSWSC 382
Decision Date: 30 April 2010

CaseChat Overview and Summary

The parties involved in the case were the Estate of Johnston, with the plaintiff being the executor and the defendant being the daughter of the deceased, Johnston. The dispute centred around the validity of an informal document intended to be the deceased's will. The case was heard in the Supreme Court of Queensland. The daughter contested the validity of the informal document and sought to challenge the grant of Letters of Administration to the plaintiff.

The central legal issues were whether the informal document constituted the deceased's will and whether there was sufficient evidence to permit the court to dispense with the usual requirements for the execution of a valid will under section 8(2) of the Succession Act. The court also had to determine whether the nominated executrix, who was the plaintiff, was mentally capable of administering the estate, given that the daughter argued otherwise.

The court found that the informal document, while not strictly adhering to the formal requirements of a will, did demonstrate the deceased's intention to create a will. The court considered the evidence of witnesses, the circumstances surrounding the creation of the document, and the overall context to conclude that there was sufficient evidence to dispense with the formal requirements. Furthermore, the court held that the nominated executrix, the plaintiff, was mentally capable of administering the estate despite the daughter's claims. Consequently, the court granted Letters of Administration cta of the will to the plaintiff.

The final orders of the court were that Letters of Administration cta of the will were granted to the plaintiff, who was named as the executor in the informal document. The court dismissed the daughter's application to challenge the validity of the will and the capability of the plaintiff to administer the estate.

Orders