Re Estate Johnson, Deceased - [2014] NSWSC 512

Supreme Court

New South Wales

Medium Neutral Citation: Re Estate Johnson, Deceased [2014] NSWSC 512
Hearing dates: 14 April 2014 and thereafter in chambers
Decision date: 02 May 2014
Jurisdiction: Equity Division - Probate List
Before: Lindsay J
Decision:
1. Declaration (pursuant to s 8 of the Succession Act 2006 NSW) to the effect that the deceased intended a document prepared for his execution to form his will notwithstanding that, at the time mirror wills of himself and his wife were executed, he erroneously executed the document prepared as his wife's will.
2. Order that probate of the will prepared for the deceased's execution, and intended by him to form his will, be granted, in solemn form, to his widow as the executrix named in the document.
3. Ancillary orders, including family provision orders made under chapter 3 of the Succession Act, to give effect to an agreement for settlement of proceedings.

Catchwords: Succession - Wills Probate and Administration - Mirror wills prepared for, and executed by, husband and wife - Signatures of both duly witnessed - By mistake, husband and wife each signed will prepared for the other - Probate sought of husband's will - Effect may be given to testamentary intentions of deceased either by admission of the document prepared for the deceased to probate as an informal will (pursuant to Succession Act 2006 NSW, s 8) or by rectification of the document signed by the deceased (pursuant to s 27 of the Act) - Document prepared for deceased, but not in fact signed by him, admitted to probate as informal will.
Legislation Cited: Succession Act 2006 NSW, s 8, s27
Cases Cited: Estate of Daly [2012] NSWSC 555 8 ASTLR 48 [11], [19], [20]
In the Estate of Gillespie (Powell J, 25 October 1991, unrep)
Public Trustee v Smith (Hodgson J, 5 November 1993)
In the Estate of Hennekan (Deceased) (2009) 104 SASR 289
Texts Cited: -
Category: Principal judgment
Parties: Kylie Anne Farr (plaintiff)
Michelle Louise Johnson (second plaintiff)
Scott Matthew Johnson (third plaintiff)
Vicki-Liane Margaret Johnson (defendant)
Representation: Counsel:
JT Kearney (defendant)
Solicitors:
Lamrocks (plaintiffs)
McIntosh Mcphillamy & Co (defendant)

File Number(s): 2012/00369255

Judgment

On 23 July 2003 Markham (also known as Mark) Clifford Johnson ("the deceased") and his wife, Vicki-Liane Margaret Johnson (the defendant), now his widow, executed mirror wills, prepared by the same solicitor, on their joint instructions.

The deceased died on 2 September 2012.

After his death it became apparent that, on 23 July 2003, the deceased and the defendant had each executed the form of will prepared for the other.

That is abundantly clear from a comparison of the two instruments executed on 23 July 2003. It is confirmed by affidavits sworn, respectively, by the defendant and by each of the two witnesses who attested both forms of will. One of the attesting witnesses was the solicitor who drafted the wills. The other was his legal secretary.

It is beyond doubt that: (a) the document prepared for the deceased, but executed…

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 Re Estate Johnson, Deceased

Details

AGLC: Re Estate Johnson, Deceased [2014] NSWSC 512
Case: [2014] NSWSC 512
Decision Date: 02 May 2014

CaseChat Overview and Summary

The parties involved in this case were the executors of the estates of a husband and wife who had both passed away. The dispute centred around the validity of their wills, which had been mistakenly signed by each other. The case was heard in the Supreme Court of New South Wales. The legal issues before the court were whether the wills could be admitted to probate as informal wills under section 8 of the Succession Act 2006 (NSW), or if rectification under section 27 of the Act was more appropriate. The court needed to determine if the testamentary intentions of the deceased could be fulfilled despite the error in signing the wills.

The court held that the wills could be admitted to probate as informal wills, as the signatures did not conform to the requirements of the Wills Act 1965 (NSW). The court reasoned that it was possible to give effect to the testamentary intentions of the deceased by admitting the document prepared for the deceased to probate as an informal will, as per section 8 of the Succession Act. The court found that rectification was not necessary, as the signatures did not prevent the court from determining the deceased's intentions. The court admitted the husband's will to probate as an informal will, as it was the document prepared for him, despite the error in signing.

The final orders of the court were that the husband's will, which was the document prepared for him, be admitted to probate as an informal will. This decision ensured that the testamentary intentions of both the husband and wife were given effect, despite the error in signing their respective wills. The court's reasoning was based on the provisions of the Succession Act 2006 (NSW), which allowed for the admission of informal wills when the signatures did not conform to the requirements of the Wills Act 1965 (NSW).

Orders