Hines v Hines Re Estate of Bok

[2006] NSWSC 1390

CITATION:	Hines v Hines Re Estate of Bok [2006] NSWSC 1390
HEARING DATE(S):	11 December 2006
JUDGMENT DATE :	11 December 2006
JURISDICTION:	Equity Division Probate List
JUDGMENT OF:	Windeyer J at 1
DECISION:	Claim for probate of document under s18A dismissed.
CATCHWORDS:	WILLS PROBATE AND ADMINISTRATION - document propounded under s18A - challenge to signature - evidence from defendant signature not that of deceased - no evidence of plaintiff that it was
LEGISLATION CITED:	Wills Probate and Administration Act 1898, s18A
PARTIES:	Andrea Hines (Plaintiff) Analise Hines (First Defendant) Danielle Audsley (Second Defendant
FILE NUMBER(S):	SC 116754/05
COUNSEL:	Mr J Fellows (Solicitor) (Plaintiff) Mr A M Colefax SC (Defendants)
SOLICITORS:	Adrian & Fellows (Plaintiff) I.V Knight, Crown Solicitor (Defendants)

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

WINDEYER J

MONDAY 11 DECEMBER 2006

116754/05 ANDREA HINES V ANALISE HINES & ANOR RE ESTATE OF STEVEN JOHN BOK

JUDGMENT

1 HIS HONOUR: The issue before the court in this matter is whether or not a document bearing a date of 16 June 2004 is a document which ought to be admitted to probate under the provisions of s18A of the Wills Probate & Administration Act 1898 being a document which sets out the testamentary intentions of the deceased and which the deceased intended without more to be his will. I should make it clear that this is the only issue to be decided by me.

2 There is a cross-claim seeking a declaration that the deceased died intestate but that is a matter which need not to be decided by the court but which I intend to have referred to the Registrar for his determination. Although there are various matters set out in the defence filed 23 November 2005 on behalf of the defendant, none of these defences are pressed other than the contention of the defendant that the document in question was not signed by the deceased. That is not denied in paragraph 1 of the defence but it is not admitted and, of course, once there is some evidence casting doubt upon that matter, the onus passes to the propounder of the document to establish its validity.

3 The defences as to lack of testamentary capacity, the fact that there were no witnesses to the document, and that the document does not embody the testamentary intentions of the deceased are no longer pressed. The only issue is that of signature. I should say that no evidence has been read or adduced on behalf of the plaintiff. The only evidence on the issue is the handwriting report of Mr Westwood. In that report, in summary, Mr Westwood said:

I found no evidence to suggest, and I consider it highly unlikely, that the questioned signatures were written by the writer of the specimen signatures attributed to Mr Bok.

4 It is not suggested that those specimen signatures which came from a variety of sources were not genuine signatures of the deceased. That is the only evidence before the court. It is not suggested by the plaintiff that she saw the deceased sign the document. She does not say that the signature on the document is the signature of the deceased. In those circumstances, the plaintiff has not fulfilled the burden on her to establish that the document propounded is a document signed by the deceased. It is not suggested that if it was not, it was a document which should be admitted to probate. In those circumstances, the plaintiff's claim must be dismissed.

5 Order statement of claim be dismissed. Order the plaintiff to pay the defendant's costs. The exhibit can remain on the file. Direct that the proceedings on the first cross-claim be referred to and determined by the Registrar unless a defence to that cross-claim is filed by 15 December 2006.

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