Court of Appeal
Supreme Court
New South Wales
Medium Neutral Citation: Rodny v Weisbord [2020] NSWCA 22 Hearing dates: 19 and 20 August 2019 Decision date: 27 February 2020 Before: Meagher JA at [1]
White JA at [99]
McCallum JA at [150]Decision: (1) Appeal allowed.
(2) Set aside orders 1, 2, 3, 4, 5, 6 and 8 made on 11 February 2019 and entered on 12 February 2019.
(3) Order that a grant of probate in solemn form of the will of Rose Rodny dated 19 December 1997 be made to Laurence Rodny.
(4) Order that the costs of the appeal of the appellant and the respondents, assessed on the ordinary basis, be paid out of the estate of Rose Rodny.
(5) Direct that the parties attempt to agree on the order to be made dealing with order 7 made by the primary judge and further direct that in the absence of such agreement they exchange written submissions, in the case of each party not to exceed three pages, and provide those submissions to the associate to Meagher JA by 12 March 2020. The dispute in relation to the disposition of that order will then be dealt with on the papers.Catchwords: SUCCESSION – probate and administration – informal document – dispensing with requirements for execution of a will pursuant to Succession Act 2006 (NSW), s 8 – intention that document form a will – where no findings as to how intention formed – where primary judge found it more likely that deceased had not seen document propounded as will – where evidence did not permit a finding as to what might have caused deceased to believe she had executed a will – where evidence did not permit a finding that deceased intended that any particular document would operate as her will Legislation Cited: Succession Act 2006 (NSW), s 8
Wills Act 1997 (Vic), s 9Cases Cited: Beaty v Beaty (1822) 1 Add 154; 162 ER 54
Bell v Crewes [2011] NSWSC 1159
Boensch v Pascoe [2019] HCA 49
Costa v The Public Trustee of NSW [2008] NSWCA 223
Deeks v Greenwood [2011] WASC 359
Estate of Laura Angius; Angius v Angius [2013] NSWSC 1895
Fast v Rockman [2013] VSC 18
Hatsatouris v Hatsatouris [2001] NSWCA 408
In the application of Kencalo (In the Estate of Ruth Buharoff) (Supreme Court (NSW), Powell J, 18 October 1991, unrep)
In the Estate of Alan Arthur McInnes (Supreme Court (NSW), Powell J, 10 April 1992, unrep)
In the Estate of Blakely, Deceased (1983) 32 SASR 473
In the Estate of Masters (decd); Hill v Plummer (1994) 33 NSWLR 446
In the Estate of Michailo Krawczuk deceased (1992) 168 LSJS 231
In the Estate of Vauk (1986) 41 SASR 342
In the Estate of Williams (1984) 36 SASR 423
IOOF Australia Trustees Ltd v Jamestown Hospital Inc (1993) 174 LSJS 263)
Mitchell v Mitchell [2010] WASC 174
Oreski v Ikac [2008] WASCA 220
Polyak Estate; Amy v Permanent Trustee [1999] NSWSC 862
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- AGLC
- Rodny v Weisbord [2020] NSWCA 22
- Case
- [2020] NSWCA 22
- Decision Date
CaseChat Overview and Summary
The central legal issue before the Court of Appeal was whether the informal document propounded by the appellant should be admitted to probate as a will, despite not complying with the formal execution requirements of the *Succession Act 2006* (NSW). This required the court to consider whether the deceased intended the document to form her will, and if so, whether the court should dispense with the formal execution requirements under section 8 of the Act.
The Court of Appeal found that the primary judge had not made findings as to how the deceased formed the intention that the document would constitute her will. Crucially, the primary judge found it more likely that the deceased had not seen the document, and the evidence did not permit a finding as to what might have caused her to believe she had executed a will. Furthermore, the evidence did not allow for a finding that the deceased intended any particular document to operate as her will. Consequently, the Court of Appeal allowed the appeal, set aside the primary judge's orders, and ordered that a grant of probate in solemn form of the will dated 19 December 1997 be made to the appellant. The costs of the appeal were ordered to be paid out of the deceased's estate.
Orders
Orders of the court
(1) Appeal allowed.
(2) Set aside orders 1, 2, 3, 4, 5, 6 and 8 made on 11 February 2019 and entered on 12 February 2019.
(3) Order that a grant of probate in solemn form of the will of Rose Rodny dated 19 December 1997 be made to Laurence Rodny.
(4) Order that the costs of the appeal of the appellant and the respondents, assessed on the ordinary basis, be paid out of the estate of Rose Rodny.
(5) Direct that the parties attempt to agree on the order to be made dealing with order 7 made by the primary judge and further direct that in the absence of such agreement they exchange written submissions, in the case of each party not to exceed three pages, and provide those submissions to the associate to Meagher JA by 12 March 2020. The dispute in relation to the disposition of that order will then be dealt with on the papers.
Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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