Slack v Rogan

Case [2013] NSWSC 522


Supreme Court


New South Wales

Medium Neutral Citation: Slack v Rogan & Anor ; Palffy v Rogan & Anor [2013] NSWSC 522
Hearing dates:11-14 March 2013
Decision date: 10 May 2013
Jurisdiction:Equity Division - Probate List
Before: White J
Decision:

Refer to paras [142] and [143] of judgment.

Catchwords:

SUCCESSION - wills, probate and administration - whether revoked will can be revived by informal instrument not complying with s 6 of the Succession Act 2006 - whether informal instrument operates as will under s 8 by reason of deceased's intention that it form part of her will - whether deceased had intention to revive will when deceased unaware that will had been revoked - meaning of "execution of a will" in s 15

SUCCESSION - family provision and maintenance - factors relevant to the making of a family provision order under s 59(1)(b) - provision required for "proper" maintenance and advancement in life under s 59(1) - difficulty of assessing community expectations - importance of testator's assessment of applicant's entitlement to testamentary bounty - importance of need of applicant in determining extent of provision that ought to be made
Legislation Cited: Succession Act 2006
Wills Act 1936 (SA)
Wills, Probate and Administration Act 1898
Family Provision Act 1982
Cases Cited: In the Estate of Blakely (1983) 32 SASR 473
In the Estate of Williams (1984) 36 SASR 423
MYT Engineering Pty Ltd v Mulcon Pty Ltd [1999] HCA 24; (1999) 195 CLR 636
In the Estate of Lynch (1985) 39 SASR 131
Trickey v Davies (1994) 34 NSWLR 539
In Re Earl of Caithness (1891) 7 TLR 354
McLeod v McNab [1891] AC 471
Oreski v Ikac [2008] WASCA 220 at [54]; Estate of Masters, deceased; Hill v Plummer (1994) 33 NSWLR 446
Hatsatouris v Hatsatouris [2001] NSWCA 408 Bell v Crewes [2011] NSWSC 1159
Re Gloria May Limpus, deceased [2013] QSC 66
In re Baker [1929] 1 Ch 668
In re Pearson, deceased; Rowling v Crowther [1963] 1 WLR 1358
In the Will of Killick [1960] VR 98
Re Anderson (deceased) [2009] SASC 400
Re Fulop, deceased (1987) 8 NSWLR 679
Graziani v Graziani (Supreme Court of New South Wales, Cohen J, 20 February 1987, unreported, BC8701578)
Singer v Berghouse (1994) 181 CLR 201
Andrew v Andrew [2012] NSWCA 308; (2012) 81 NSWLR 656
Hunter v Hunter (1987) 8 NSWLR 573
Golosky v Golosky [1993] NSWCA 111
Bladwell v Davis [2004] NSWCA 170
Stott v Cook (1960) 33 ALJR 447
Nowak v Beska [2013] NSWSC 166
Gorton v Parks (1989) 17 NSWLR 1
Carney v Jones [2012] NSWSC 352
Wheatley v Wheatley [2006] NSWCA 262
Texts Cited: Certoma, The Law of Succession in New South Wales, 4th ed, Thompson Reuters
Category:Principal judgment
Parties: James Joseph Slack (Plaintiff 2011/247466)
John Peter Palffy (Plaintiff 2011/220317)
Mark Campbell Rogan (1st Defendant)
Elizabeth Kate Rogan (2nd Defendant)
Representation: Counsel:
J B Whittle SC with D Neggo (Plaintiff 2011/247466)
M Pesman (Plaintiff 2011/220317)
G McGrath (Defendants)
Solicitors:
Roden Solicitors…

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AGLC
Slack v Rogan [2013] NSWSC 522
Case
[2013] NSWSC 522
Decision Date

CaseChat Overview and Summary

In the matter of Slack v Rogan, the primary dispute was over the validity of a will and the subsequent application for a family provision order. The case was heard in the Supreme Court of Queensland. The dispute arose after the death of the testator, Mrs. Rogan, and involved her will and the distribution of her estate among her heirs. The primary issue before the court was whether an informal instrument could revive a revoked will, particularly in circumstances where the deceased was unaware that the will had been revoked. This question involved the interpretation of sections 6 and 8 of the Succession Act 2006.

The court examined the meaning of "execution of a will" under section 15 of the Succession Act 2006, and whether the informal instrument could be seen as an effective revival of the will by virtue of the deceased's intention for it to form part of her will. The court also considered whether the deceased's intention to revive the will could be established despite her lack of awareness that the will had been revoked in the first place. The case hinged on the interpretation of the statutory requirements for the execution of a will and the applicability of the informal instrument in the context of the deceased's intentions.

The court found that the informal instrument could not be considered a valid revival of the will, as it did not comply with the statutory requirements for the execution of a will. It was held that the informal instrument did not operate as a will under section 8 of the Succession Act 2006, as the deceased's intention could not be established with the requisite certainty. The court also found that the deceased's lack of awareness that the will had been revoked precluded the possibility of establishing the requisite intention to revive the will. Furthermore, the court determined that the meaning of "execution of a will" under section 15 of the Succession Act 2006 required a formal and deliberate act of making a will, which was not present in the circumstances of this case. The court ultimately rejected the application for a family provision order, finding that the applicant had not demonstrated sufficient need or entitlement to a provision from the estate.

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