Polyak Estate; Amy v Permanent Trustee - [1999] NSWSC 862

CITATION: Polyak Estate; Amy v Permanent Trustee [1999] NSWSC 862

CURRENT JURISDICTION: Equity

FILE NUMBER(S): 108637/98

HEARING DATE(S): 17 and 18 August 1999

JUDGMENT DATE:
18 August 1999

PARTIES :

Estate of Stephen Kazimir Polyak; Francis Martin Amy (P)
Permanent Trustee Company Limited (D)

JUDGMENT OF: Austin J

COUNSEL : P O'Loughlin and A Pearman (P)
P Blackburn-Hart (D)

SOLICITORS: McFadden & Co (P)
Bartier Perry (D)

CATCHWORDS: Wills - probate - whether unexecuted document should be admitted to probate - whether document 'constituted a will' - Court satisfied that the deceased intended the document to constitute his will - relevant factors

ACTS CITED: Wills Probate & Administration Act 1898 (NSW) s 18A

CASES CITED: Re Estate of Masters; Hill v Plummer (1994) 33 NSWLR 446
Re Application of Brown; Estate of Springfield (1991) 23 NSWLR 535
Cloon v Allingham (14 December 1990, Needham J)
Re Kenkalo (23 October 1991, Powell J)
Pahlow-Silady v Siladi (21 November 1994, Santow J; on appeal 22 April 1997, Gleeson CJ, Mason P and Powell JA)
Re Perram (4 April 1995, Santow J)
Re Stewart (12 April 1996, Cohen J)
Laurence v Gorman (17 November 1995, Simos J)

DECISION: Judgment for plaintiff

THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION

AUSTIN J

WEDNESDAY 18 AUGUST 1999

108637/98 - FRANCIS MARTIN AMY v PERMANENT TRUSTEE COMPANY LIMITED THE ESTATE OF STEPHEN KAZIMIR POLYAK

JUDGMENT (ex tempore; revised on 23 August 1999)

1 HIS HONOUR: The plaintiff, as the executor named in an undated, informal, but allegedly testamentary document, seeks a declaration to the effect that the deceased, Stephen Kazimir Polyak, prepared the document intending that it constitute his will; and consequently an order that probate in solemn form of that document be granted to him. 2 The summons filed on 16 June 1998 sought those orders in respect of a typed document, which was Exhibit P1 in the proceedings, and also a handwritten document which was Exhibit P2. However, in submissions, the plaintiff's counsel took the view that in light of the evidence, the proper course was to seek relief in relation to the typewritten document only. 3 The typewritten document is unsigned and purports to be the last will and testament of Mr Polyak, revoking all other wills. It purports to appoint the plaintiff to be executor and trustee. It gives a neighbour, Anne Pollard, five percent of the value of Mr Polyak's real and personal property and gives a further five percent to the secretary of the Montefiore Home to benefit the purposes of that institution. The document then gives the remainder of Mr Polyak's real and personal property to the plaintiff ‘in appreciation of his kind support in my old age’. It makes provision for dating, though the month of February 1998 is typed in, and leaves a space for signature. It then lists the property of the testator and at the bottom of the document, which is only one page, there is a direction to ‘insert in will’ at a…

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 Polyak Estate; Amy v Permanent Trustee

Details

AGLC: Amy v Permanent Trustee [1999] NSWSC 862
Case: [1999] NSWSC 862
Decision Date: 18 August 1999

CaseChat Overview and Summary

In the matter of Polyak Estate; Amy v Permanent Trustee, the deceased left behind an unsigned document which the executor claimed should be admitted to probate as his will. The respondent argued that the document did not constitute a will as it was not executed in accordance with the requirements of the Wills Act. The matter was heard in the Supreme Court of New South Wales, Equity Division. The central legal issue was whether the unsigned document could be admitted to probate as the deceased's will, given that it did not comply with the formalities required by law.

The court considered various factors to determine if the document constituted a will, including the deceased's intention, the completeness of the document, and the circumstances surrounding its creation. The court held that the document, although unsigned, should be admitted to probate as the deceased's will. The court found that the deceased intended the document to be his will, and the document was substantially complete, with the signature being an oversight rather than an indication that the deceased did not intend to execute the document as his will. The court was satisfied that the deceased's intention was clear, and the other formalities were sufficiently complied with.

The court found that the document constituted a will and ordered that it be admitted to probate. The unsigned document was considered to be the will of the deceased, and the executor was directed to proceed with the administration of the estate in accordance with its terms. The respondent's objections were dismissed, and the executor was authorised to take the necessary steps to distribute the estate as per the terms of the will.

Orders