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Re Estate Miruzzi, deceased

Re Estate Miruzzi, deceased

Case [2018] NSWSC 1899 19 December 2018

Probate and Administration

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Supreme Court

New South Wales

Amendment notes

Medium Neutral Citation: Re Estate Miruzzi, deceased [2018] NSWSC 1899
Hearing dates: 4 and 5 December 2018
Decision date: 19 December 2018
Jurisdiction: Equity - Probate List
Before: Lindsay J
Decision:
A formal will of a deceased testator (not revoked by informal “approval” of a subsequently prepared but unexecuted draft will, or by destruction of a photocopy of the formal will) admitted to probate as the deceased’s last will.

Catchwords:
SUCCESSION – Probate and administration – Revocation of will by destruction – Alleged destruction of photocopy of will - Dispute about intention to revoke will – Original will not destroyed –– No revocation by destruction of mere photocopy of will - Will admitted to probate
SUCCESSION – Probate and administration – Informal document – Draft will approved but not executed by testator – No intention that draft operate as will before execution – Disputed informal will not admitted to probate
Legislation Cited: Interpretation Act 1987
Report 47 (1986): Wills - Execution and Revocation.
Report 85 (1998): Uniform Succession Laws: The Law of Wills.
Succession Act 2006
Uniform Civil Procedure Rules 2005 NSW
Wills Act 1837 (1 Victoria chapter 26)
Wills, Probate and Administration Act 1898 NSW
Cases Cited: Cahill v Rhodes [2002] NSWSC 561
Deeks v Greenwood [2011] WASC 359
Estate of Laura Angius; Angius v Angius; (2013] NSWSC 1895
Hatsatouris v Hatsatouris [2001] NSWSC 408
In the Estate of Robert Edmonds (deceased) [2016] SASC 41
Lippe v Hedderwick (1922) 31 CLR 148 at 152-153.
Mitchell v Mitchell [2010] WASC 174
Re Moschoudis [2016] VSC 139
Reynolds v Bonnici [2017] NSWSC 828
Cheese v Lovejoy (1877) 2 PD 251
Texts Cited: GE Dal Pont and KF Mackie, Law of Succession (LexisNexis Butterworths, Australia, 2nd ed, 2017) paragraphs [5.16]-[5.22]
Williams on Wills (LexisNexis, London, 10th ed, 2014), Vol. 1, paragraph [18.19].
Category: Principal judgment
Parties: Plaintiff: Leonie Rigney
First Defendant: The Sydney Children’s Hospital Network (Randwick and Westmead) (incorporating the Royal Alexandra Hospital for Children)
Second Defendant: Alessandra Carla Gonella
Representation:
Counsel:
Plaintiff: L Ellison SC
First Defendant: JEF Brown and LM Johnston
Second Defendant: M Willmott SC and E Elbourne
Solicitors:
Plaintiff: Bartier Perry
First Defendant: Blanchfield Nicholls Partners
Second Defendant: Mills Oakley Lawyers

File Number(s): 2016/00102775

JUDGMENT

INTRODUCTION

Before the Court are competing claims to an exercise of probate jurisdiction designed to resolve questions about whether a deceased person died testate or intestate and, if testate, with a will dated 17 August 2015 (as the plaintiff contends) or an informal will said (by the first defendant) to have been made on or about 16 February 2016 as his last due expression of testamentary intentions.
The first defendant contends that the will dated 17 August 2015 was revoked by the disputed informal will of 16 February 2016 or thereabouts or, alternatively, by the deceased’s alleged destruction of a copy of the will (some time between 23 November 2015 and 4 December 2015 or thereabouts) with an intention that the will be revoked.
In…

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 Miruzzi, deceased

Details

AGLC: Re Estate Miruzzi, deceased [2018] NSWSC 1899
Case: [2018] NSWSC 1899
Decision Date: 19 December 2018

CaseChat Overview and Summary

In the matter of the estate of Miruzzi, deceased, the High Court of Australia was called upon to resolve a succession dispute. The central issue revolved around the revocation of a will through the destruction of a photocopy of the will. Additionally, the court had to determine the validity of an informal document purported to be a draft will that was never executed by the testator.

The legal issues before the court included whether the destruction of a photocopy of the will constituted a revocation of the will itself, and whether an informal document that had not been executed by the testator could be admitted to probate as a valid will. The primary concern was whether the destruction of the photocopy bore the requisite intention to revoke the will, and whether the draft document, despite not being formally executed, could be considered a valid will. The court had to balance the principles of testamentary freedom with the need for certainty in the execution and revocation of wills.

The court ruled that the destruction of a photocopy of the will did not amount to a revocation of the original will, as there was no evidence that the testator intended to revoke the will by destroying the photocopy. The court emphasised that the original will remained intact and had not been physically altered or destroyed. Consequently, the will was admitted to probate. Regarding the informal document, the court held that it did not meet the criteria for a valid will as it had not been executed by the testator with the necessary formalities. The court noted that the document was a draft and not intended to operate as a will until properly executed. Therefore, the informal document was not admitted to probate.

The final orders of the court were that the will, despite the destruction of a photocopy, was admitted to probate, while the informal draft document was not accepted as a valid will. The estate was to be administered in accordance with the validly admitted will.

Orders