Kedzier v Postle - [2002] NSWSC 875

CITATION: Kedzier v Postle [2002] NSWSC 875

CURRENT JURISDICTION: Probate Division

FILE NUMBER(S): SC 119885/01

HEARING DATE(S): 09/09/02

JUDGMENT DATE: 30 September 2002

PARTIES :

Ruth Kedzier v Freda Postle (The Estate of Isadore Joseph Horne)

JUDGMENT OF: Acting Justice Macready at 1

COUNSEL : Mr M. Willmott for plaintiff
Mr F. Kunc for defendant

SOLICITORS: Teece Hodgson & Ward for plaintiff
Pryor Tzannes & Wallis

CATCHWORDS: Succession: Wills Probate & Administration. Application under s18A of the Wills Probate & Administration Act. Codicil signed by the deceased but not witnessed. Testator believed a codicil needed to be witnessed. In the circumstances codicil not admitted to probate.

LEGISLATION CITED: Legislation s18A Wills Probate & Administration Act

CASES CITED: Estate of Masters (1994) 33 NSWLR 446
Estate of Parkinson (1988) 143 LSJS 336

DECISION: Paragraph 39

- 1 -

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

Acting Justice Macready

Monday 30 September 2002

119885/2001 Ruth Kedzier v Freda Postle – The Estate of Isadore Joseph Horne (Also known as Joseph Horne)

JUDGMENT

1 His Honour: This is an application made under section 18A of the Wills Probate and Administration Act in respect of a codicil made by the late Isadore Joseph Horne on 9 July 2000. The deceased was also known as Joseph Horne. In her summons the plaintiff seeks a declaration that the document dated 9 July 2000 signed by the deceased, but not witnessed, constituted a codicil to his last will. The plaintiff sought a grant of probate of the will and the codicil to her with leave reserved to the defendant, the first named executor in the will, to come in and prove the will.

2 The deceased made his last will in February 1997. Under that will he appointed his two daughters, the plaintiff and the defendant, as executors and trustees. After eight legacies of $20,000 to his various grandchildren the deceased left the whole of his estate to be shared equally between his two daughters.

3 The document of 9 July 2000 is on a piece of note paper and has at the top right hand corner the deceased's address namely 141 Victoria Road, Bellevue Hill 2023. It is headed "Codicil dated 9 7 2000”. The substance of the document is as follows: --

”This codicil is related to Isadore Joseph Horne owners & residence of 141 Victoria Road Bellevue Hill 2023, I hereby bequeath the said land and buildings of 141 Victoria Road Bellevue Hill 2023 to Ruth Kedzier of 30 Maitland Ave Kingsford 2032 for her own use.

Furthermore upon transfer the said property to Ruth Kedzier: Freda Postle of 7 Eastern Ave, Kensington transfer the same sum of monies equivalent valuation of land and buildings as described as her share of my estate.”

4 There then follows the word “signed” and next to that “J Horne”. There is no doubt that the document is in the handwriting of the deceased.

5 The defendant filed an amended cross-claim on 15…

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.

Continue reading Kedzier v Postle

Details

AGLC: Kedzier v Postle [2002] NSWSC 875
Case: [2002] NSWSC 875
Decision Date: 30 September 2002

CaseChat Overview and Summary

The case of Kedzier v Postle involved a dispute over the validity of a codicil to a will. The deceased, who was believed to have understood that a codicil required witnessing, signed a codicil but it was not witnessed. The matter was brought before the court to determine whether the codicil should be admitted to probate under section 18A of the Wills Probate & Administration Act. The primary issue before the court was whether the lack of witnesses to the codicil should preclude its admission to probate, considering the testator's apparent belief that witnessing was a necessary part of the codicil's execution.

The court examined the relevant statutory provisions and the circumstances surrounding the execution of the codicil. It was established that the testator had a genuine belief that the codicil required witnessing, a belief that was not corrected or challenged by any party present during the codicil's execution. The court held that because the testator held a mistaken belief about the necessity of witnessing, and no party corrected this belief, the codicil was not validly executed according to the requirements of the Act. The court emphasised that the testator's mistaken belief about the legal requirements for executing a codicil was critical in determining the outcome. As a result, the codicil was not admitted to probate.

The court's decision was definitive, and it found in favour of the respondent, ruling that the codicil was not validly executed and therefore should not be admitted to probate. The court's reasoning was grounded in the testator's mistaken belief about the legal formalities required for a codicil, and the absence of any correction of this belief at the time of execution. The final orders of the court were that the codicil in question was not admitted to probate and the estate was to be administered in accordance with the original will.

Orders