Fischer v Foreman

[2003] NSWSC 417

CITATION:	Fischer v Foreman [2003] NSWSC 417
HEARING DATE(S):	28 April 2003
JUDGMENT DATE:	28 April 2003
JURISDICTION:	Equity
JUDGMENT OF:	Campbell J
DECISION:	Rectification granted
CATCHWORDS:	SUCCESSION - WILLS PROBATE AND ADMINISTRATION - probate and letters of administration - rectification of wills - testatrix causes destruction of will mistakenly believing it will cause earlier will to revive
LEGISLATION CITED:	Wills, Probate and Administration Act 1898
PARTIES :	Lisa Fischer - Plaintiff Anne Foreman - First Defendant Tracey Leanne Wilkinson - Second Defendant
FILE NUMBER(S):	SC 2033/03
COUNSEL:	G Underwood - Plaintiff J Needham - Defendants
SOLICITORS:	Ken Heasman - Plaintiff Hunt & Hunt - First Defendant L G Parker & Co - Second Defendant

IN THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION
EQUITY LIST

CAMPBELL J

MONDAY 28 APRIL 2003

2033/03 LISA FISCHER v ANNE FOREMAN (in the Estate of Susan Rae Mary Read)

JUDGMENT – Ex Tempore

1 HIS HONOUR: This is an application made in the estate of the late Susan Rae Mary Read. The deceased had made a will on 28 March 2001 which conferred all benefits on the plaintiff. There was a change of mind on Miss Read's part, when she executed a second will on 25 September 2001 which conferred all benefits on the sister of Miss Read. The deceased then had a further change of mind, and wished to reinstate the provisions of the first will.

2 She specifically instructed her solicitor to that effect. The course which was adopted by the solicitor, was to destroy the will of 25 September 2001. Miss Read agreed to that destruction, believing that thereby her will of 28 March 2001 would be revived.

3 But the destruction of her first will, as a matter of law, did not have the effect which the testatrix wished. The will of 25 September 2001 contained a revocation clause. At the time she executed it, there was no reason to believe that that revocation clause was intended to be in any way conditional. It was, therefore, fully effective, and operated to revoke the will of 28 March 2001. The true legal effect of the destruction, on the deceased's instruction, of the will 25 September 2001, was to leave her dying intestate. This was a completely different outcome to the one she wanted to bring about.

4 This is a situation where it is appropriate to use section 18 A of the Wills, Probate and Administration Act 1898 to remedy this clear mistake. The orders which the court is asked to make today, are ones which would have the effect of having the provisions of the will of 28 March 2001 become those which are the operative provisions which govern the distribution of the testatrix's estate.

5 There has been a further agreement between the parties and a daughter of the deceased whereby if such an order is made, the parties will further rearrange Miss Read’s affairs between themselves. While it is appropriate for that fact to have been disclosed to the court, it does not call for the court to make any order.

6 I grant leave to file an Amended Summons in court which I initial and date today and place with the papers. I make a declaration that the will of the late Susan Rae Mary Read ("the Deceased") dated 25 September 2001 was validly revoked. I declare pursuant to section 18 A of the Wills, Probate and Administration Act 1898 that the will of the Deceased dated 28 March 2001 constitutes the last will of the Deceased. I make further orders in accordance with paragraphs 4, 5, and 6 of the Amended Summons in this matter.

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Last Modified: 05/20/2003