Leslie v McDowell - [2000] NSWSC 727

CITATION: Leslie v McDowell; Estate of Joyce Wilhelmina Commins [2000] NSWSC 727

CURRENT JURISDICTION: Equity Division
Probate List

FILE NUMBER(S): SC 118714/98

HEARING DATE(S): 30/06/2000

JUDGMENT DATE: 30 June 2000

PARTIES :

Douglas Kevin Leslie (P)
Norma Phyllis McDowell and Ian Wray Leslie (D1)
Elizabeth Ann Cocks (D2)
Kerril Ann Grun (D3)
Wendy Hamilton (D4)

JUDGMENT OF: Young J

COUNSEL : G M Colman (P)
J Needham (D1 & 2)
D R Pritchard (D3)
D Fitzsimons (D4)

SOLICITORS: Staunton & Thompson (P)
Alderdice & Clarke (D1)
Booth & Boorman (D2)
Garland Hawthorn Brahe (D3)
C R Fitzsimons (D4)

CATCHWORDS: SUCCESSION [48]- Informal will- Draft written out before deceased took long journey by air- Whether intended only as stop gap- On balance, probate granted.

LEGISLATION CITED: Wills Probate and Administration Act 1898, s 18A

CASES CITED: In the Estate of Masters (1994) 33 NSWLR 446
Permanent Trustee Company Ltd v Milton (1996) 39 NSWLR 330
Public Trustee v Commins (Wray's case) - 19 June 1992 unreported
Read v Chown (1929) 46 WN 154

DECISION: See para 50

THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION
PROBATE LIST

YOUNG J

FRIDAY 30 JUNE 2000
118714/98 - LESLIE v McDOWELL & ORS; THE ESTATE OF JOYCE WILHELMINA COMMINS
JUDGMENT
1    HIS HONOUR: This is an application under section 18A of the Wills Probate and Administration Act 1898 as amended, for a declaration that an informal document constitutes the last will of the late Joyce Wilhelmina Commins (the “deceased”). If that declaration is made then there will need to be a reference to the Registrar in Probate to complete the grant.
2    The deceased was one of six siblings, only one of whom, Norma McDowell, survived her. The plaintiff is a nephew of the deceased, being the son of the deceased's sister, Olive. He is the person named as executor in the document being propounded. Mr G Colman of counsel appeared for him.
3    Apart from the informal document, no other will that has any effect has been found amongst the property of the deceased. She had a will of 1961 which left all her property to her sister, Gwen Wray, who predeceased her.
4    The informal document is written on the reverse side of an envelope addressed to the deceased from the Cunard World Club. It has been analysed by Mr Anderson, a forensic document examiner. In Mr Anderson's affidavit, there is a copy of the document which has been highlighted in different colours to indicate three writing sessions at different times which went into creating the final document.
5    Mr Anderson has highlighted in green what appears to be the original text. He has highlighted in blue some additions made in a black ballpoint pen and highlighted in pink additions and alterations that were made in a blue ballpoint pen. In these reasons I will refer to the green part, the blue additions and the pink additions when necessary.
6    The informal document makes it clear that the deceased wished…

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 Leslie v McDowell

Details

AGLC: Leslie v McDowell [2000] NSWSC 727
Case: [2000] NSWSC 727
Decision Date: 30 June 2000

CaseChat Overview and Summary

Leslie v McDowell was a case before the court where the primary issue was the validity of an informal will. The deceased, who was due to embark on a lengthy air journey, had written out a draft document that was intended to serve as a testamentary disposition of their estate. The court had to determine whether this document was intended as a temporary measure, or whether it constituted a final expression of the deceased's wishes. The decision hinged on the interpretation of the document's purpose and the deceased's intentions at the time of drafting.

The legal issues before the court included whether the draft document was a formal will, and if so, whether it satisfied the statutory requirements for a valid will. The court considered the circumstances surrounding the creation of the document, the deceased's actions, and their state of mind when drafting it. The key issue was whether the draft was intended to be a temporary measure or a final testamentary disposition. The court also had to consider the impact of the deceased's imminent long-distance air travel on their decision-making process.

The court ultimately found that, on balance, the draft document was intended to serve as the deceased's final testamentary disposition. The court noted that the deceased had taken the time to draft the document and had not indicated any intention to replace it with a formal will. The court held that the document satisfied the statutory requirements for a valid will, and granted probate accordingly. The court emphasised that the draft document, while informal, was a genuine expression of the deceased's wishes and should be respected as such. The court's decision was based on a careful consideration of the evidence and the circumstances surrounding the creation of the document.

Orders