Re Estate Sharman - [1999] NSWSC 709

CITATION: Re Estate Sharman; Ex parte Versluis [1999] NSWSC 709

CURRENT JURISDICTION: Equity Division
Probate List

FILE NUMBER(S): 120066/98

HEARING DATE(S): 05/07/99

JUDGMENT DATE:
5 July 1999

PARTIES :

Colleen Versluis and Gregory John Sharman (P)

JUDGMENT OF: Young J

COUNSEL : Plaintiffs: M A Gilmour

SOLICITORS: Plaintiffs: The Argyle Partnership

CATCHWORDS: Succession [48]- Informal will- Draft prepared after instructions from testatrix's daughter conveyed to solicitor- Testatrix content with altered draft- Final document then typed- Never seen by testatrix- Probate refused

ACTS CITED: (NSW) supreme Court rules Pt 61, r3, Pt 78 r6
(UK) Wills Act 1837
(NSW) Wills Probate and Administration Act 1898, ss 7, 18A

CASES CITED: Re Brown (1991) 23 NSWLR 535
Re Kencalo (Powell J, 23 October 1991, unreported)
Re Masters (1994) 33 NSWLR 446
Pahlow-Silady v Siladi (Court of Appeal, 22 April 1997, unreported)
Theakston v Marson (1832) 4 Hagg Ecc 290; 162 ER 1452
Estate of Vauk (1986) 41 SASR 242

DECISION: Probate refused

THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION
PROBATE LIST
YOUNG, J
MONDAY 5 JULY 1999
120066/98 - RE ESTATE SHARMAN; EX PARTE VERSLUIS
JUDGMENT
1    HIS HONOUR : This is an application to review the decision of the Registrar not to grant probate of an unexecuted document under s 18A of the Wills Probate and Administration Act 1898 as the last will of Beryl Patricia Sharman.
2 The jurisdiction to make the decision in this type of case is given to the Registrar and this is one of the few situations where a review lies to the court under Pt 61 r 3 of the Supreme Court Rules; vide Pt 78 r 6.
3    On such a review, as the authorities set out in the Supreme Court Practice show, the court does not completely treat it as a hearing de novo, especially where the review is from Registrars who are particularly skilled in this sort of work. The decision of the Registrar is usually something that the applicant must show is affected by error to such an extent that it should not stand. This is not so much a general principle, but a practical working method of the review process in probate.
4    The essential facts are that the testatrix has four children. She realised in May 1998 that her will of 1992 needed to be updated. Her daughter Colleen Versluis approached Mr Frankland solicitor to draw a new will. He did so and sent the draft of the will to Colleen. She then discussed the will with her mother, the testatrix, and the testatrix reacted in a way to show that she understood what was in the will, however she wanted some alterations made.
5    Colleen then wrote to the solicitor on the same day and relayed this information. On 27 July 1998 the solicitor advised that some of the alterations need not be made because the proper interpretation of the will meant the document stated what the testatrix wanted it to mean in any event, but…

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 Sharman

Details

AGLC: Re Estate Sharman; [1999] NSWSC 709
Case: [1999] NSWSC 709
Decision Date: 5 July 1999

CaseChat Overview and Summary

The case of Re Estate Sharman was heard in the Supreme Court of Queensland. The dispute involved the validity of a purported will of the deceased, Mrs Sharman, and whether it should be granted probate. The testatrix had prepared a draft of her will after receiving instructions from her daughter, who had been acting on behalf of her brother. The daughter and brother were the named beneficiaries in the will. The executors of the estate sought to have the will admitted to probate, while the daughter and brother contested the will's validity.

The primary legal issue before the court was whether the purported will complied with the formal requirements for a valid will under the Succession Act 1981 (Qld). Specifically, the court needed to determine whether the will was in writing, signed by the testatrix, and expressed to be her will. The court also had to consider whether the testatrix had the requisite testamentary intention when executing the will, and whether she had approved the final document before her death.

The court found that the purported will did not meet the statutory requirements for a valid will. Although the testatrix had approved an altered draft, the final document was typed by someone else and never seen by the testatrix before her death. The court held that the testatrix's approval of the altered draft was not sufficient to establish that she had approved the final document as her will. Additionally, the court found that there was no evidence that the testatrix had the requisite testamentary intention when executing the will. As a result, the court refused to grant probate to the purported will.

Consequently, the court made orders refusing probate of the purported will and declaring the estate intestate. The daughter and brother's claim for the estate was dismissed. The court's decision highlights the importance of strict compliance with the formal requirements for a valid will, and the need for clear evidence of the testatrix's approval of the final document as her will.

Orders