Knight v Fawell in the Estate of Fawell

[2005] NSWSC 1363

CITATION:	Knight v Fawell in the Estate of Fawell [2005] NSWSC 1363
HEARING DATE(S):	22 August 2005
JUDGMENT DATE :	22 August 2005
JURISDICTION:	Equity Division Probate List
DECISION:	Section 18 declaration made

CATCHWORDS:	WILLS PROBATE AND ADMINISTRATION - whether document satisfies requires under s18A of Wills Probate and Administration Act 1898 (NSW) - will only witnessed by one person - will admitted to probate
LEGISLATION CITED:	Wills Probate and Administration Act 1898
PARTIES:	Deborah Ann Fawell (Plaintiff/Cross Defendant) Mark Edward Fawell (First Defendant/Cross-claimant) Brett William Fawell (Second Defendant) Alexandra Ann Fawell (Third Defendant) Veronica Jane Fawell (Fourth Defendant)
FILE NUMBER(S):	SC 109395/04
COUNSEL:	Mr P Jeffriess (Plaintiff/cross-defendant) Ms S A Mason (Defendants/Cross-claimant)
SOLICITORS:	Emery Partners (Plaintiff/cross-defendant) Curtis Delaney Gray (Defendants/cross-claimant)

LOWER COURT JURISDICTION:

- 1 -

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

WINDEYER J

MONDAY 22 AUGUST 2005

109395/04 DEBORAH ANN KNIGHT v BRETT WILLIAM FAWELL & 3 ORS - THE ESTATE OF PETER MARK FAWELL

JUDGMENT

1 HIS HONOUR: The question for decision in this matter is whether a document signed by Peter Mark Fawell on 8 November 2002 was intended by him to be his will. Mr Fawell died on 12 December 2002.

2 The deceased had made a will dated 23 November 1999, which is clearly a valid testamentary instrument and complies with the requirements for such an instrument set out in the Wills Probate & Administration Act 1898. Under that document the deceased gave to each of his four children the sum of one hundred thousand dollars and gave the residue of his estate to his wife Deborah Ann Fawell.

3 The relationship between the deceased and his wife came to an end after that document was signed and on 8 November 2002 Mr Fawell signed a document expressed on its face to be his will under which he gave his estate equally to his four children. That document included in the final paragraph:

I do not wish my wife Deborah or her children to have any claim on my assets.

4 Mr Fawell signed that document and it was witnessed by Michael John Turner, an employee of Mr Fawell's business. There was no second witness.

5 The question then is whether that document fulfils the requirements under s18A of the said Act.

6 Mr Turner has given evidence on affidavit as to the reasons why the document was signed. It was signed because the marriage between the deceased and his wife had broken down. It seems that Mrs Fawell had entered into a relationship with another man.

7 The deceased said to Mr Turner:

I need you to witness my will. I am doing this because I don't want the bitch to get anything if I die. That's the way I want it to be.

8 He then signed the document. Mr Turner signed as a witness and the deceased then said to Mr Turner, "Could you keep that document locked away for me." Mr Turner then placed the will in a locked filing cabinet in the office with other documents, such as the deceased's life insurance policies, documents of title to his home and bank documents. The deceased had a key to that cabinet and Mr Turner had, so he says, the only other key.

9 This document was referred to by the deceased as a will. The deceased wrote it out. There was a reason for him amending the will which he had made in 1999. For the requirements of s18A to be made out there must be first, a document; second, that document must represent the testamentary intentions of the deceased; third, the deceased must intend that document to operate from that time or from a particular later time as his will. In my view all those requirements are made out and the document should be admitted to probate. It follows from that that the orders which ought to be made are that the summons should be dismissed and a declaration should be made pursuant to s18A so far as the informal document is concerned.

10 All persons interested under the later document have consented to letters of administration being granted to the cross-claimant. In those circumstances I propose to make that order but refer it to the Registrar to complete the grant and to determine whether any administration bond should be required.

11 I order the summons be dismissed.

12 I make the declaration sought in para 1 of the cross-claim.

13 I order that letters of administration with the will dated 8 November 2002 annexed of the estate of Peter Mark Fawell, deceased, be granted to Mark Edward Fawell, one of the beneficiaries under the said will.

14 I order that it be referred to the Registrar to complete the grant and to determine whether an administration bond is required.

15 I order costs of both parties of the proceedings be paid out of the estate of the deceased.