Stand over the proceedings for mention to determine the form of orders to be made and to consider manner in which the question of how the costs of the proceedings are to be borne is to be determined
Catchwords:
SUCCESSION – Probate and administration –Whether Court satisfied that a document which was handwritten, but unsigned and undated, by the deceased, purports to state the testamentary intentions of the deceased and was intended by him to form his Will – Dispensing with requirements for due execution of a will pursuant to s 8 of the Succession Act 2006 (NSW) – Question raised whether the deceased had testamentary capacity due to alcohol consumption – No evidence of temporal link between when informal document written and the alcohol consumed – Evidence, sufficient for Court to be satisfied that the deceased had testamentary capacity, that he knew and approved the contents of the informal document (which was not in dispute), and that he intended the informal document to form his Will
SUCCESSION – Defendants raise allegation of an earlier will made by the deceased which was not found and the original, a copy, or even a draft, of which no one had seen – Reference to a will made by the deceased months before his death - Defendants assert that the unfound Will was removed by the father of the Plaintiff, after the deceased’s death, from the deceased’s home – Serious allegation of what may be criminal conduct under s 135 Crimes Act 1900 (NSW) made - Court not satisfied of the existence of the unfound Will or that it had been removed by the Plaintiff’s father bearing in mind the whole of the evidence and s 140 of the Evidence Act 1995 (NSW)
Whether presumption of destruction of unfound Will animo revocandi rebutted - Onus on the Defendants to rebut presumption - Court satisfied that even if the unfound Will existed, the presumption of destruction by the deceased with intention to revoke that Will had not been rebutted
Alternative claim by the Plaintiff that the deceased died intestate – No dispute that whole estate passes to the Plaintiff under the operation of the rules of intestacy if informal document not intended to form his Will and if the Court not satisfied that the unfound Will existed, or even if it existed, was not removed by the Plaintiff’s father
[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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AGLC
Heffernan v Innes [2021] NSWSC 1033
Case
[2021] NSWSC 1033
Decision Date
CaseChat Overview and Summary
In the matter of Heffernan v Innes, the dispute revolves around the validity of a handwritten, unsigned, and undated document that was purportedly intended by the deceased to be his Will. The matter was heard in the Supreme Court of New South Wales. The defendants questioned whether the deceased had testamentary capacity due to alcohol consumption, but the court found that there was no evidence of a temporal link between when the informal document was written and the alcohol consumed. The court was satisfied that the deceased knew and approved the contents of the document and intended it to be his Will.
The legal issues before the court included whether the informal document could be considered the deceased's Will, whether the deceased had testamentary capacity, and whether an earlier Will existed that had allegedly been removed from the deceased’s home by the father of the plaintiff. The defendants argued that the unfound Will existed and was removed by the plaintiff’s father, but the court was not satisfied with this claim. The court considered the presumption of destruction of the unfound Will animo revocandi, which had not been rebutted by the defendants.
The court concluded that the informal document was intended to be the deceased's Will, and the presumption of destruction of the unfound Will had not been rebutted. The alternative claim by the plaintiff that the deceased died intestate was not upheld as the court found that the informal document was intended to be the Will. The court made orders accordingly, recognising the informal document as the Will of the deceased.