The Estate of Young

[2024] NSWSC 569

Supreme Court

New South Wales

Medium Neutral Citation:	The Estate of Young [2024] NSWSC 569
Hearing dates:	10 May 2024
Date of orders:	10 May 2024
Decision date:	10 May 2024
Jurisdiction:	Equity - Succession & Probate List - Probate
Before:	Hammerschlag CJ in Eq
Decision:	Probate granted
Catchwords:	SUCCESSION – Informal will in a notepad – Succession Act 2006 (NSW) s 8 – Whether the deceased intended the document to form his will – Held: He did.
Legislation Cited:	Succession Act 2006 (NSW)
Category:	Principal judgment
Parties:	Anthea Megan Young (Plaintiff)
Representation:	Counsel: D Yazdani (Plaintiff) Solicitors: Safe Will Legal (Plaintiff)
File Number(s):	2023/00140732
Publication restriction:	Nil

Ex Tempore JUDGMENT (REVISED)

1. HIS HONOUR: Kenneth Warren Young (the deceased) died on 24 August 2022 aged 85. He was divorced and had no children. The plaintiff, Anthea Megan Young (Anthea) is his niece, being the daughter of his late brother Raymond Roy Young. She has two brothers, Damon Young and Aaron Young. I will refer to Damon and Aaron as “the nephews”.

2. The deceased left a net distributable estate of $767,366 as at November 2023. After he died, Anthea discovered a notebook (or notepad) on the deceased's armchair in his home in Maroubra, on which he often sat.

3. Anthea, by Summons dated 21 November 2023 seeks a declaration pursuant to s 8 of the Succession Act 2006 (NSW) (the Act) that three pages of the book be admitted to probate as the will of the deceased, together with a grant to her of administration of the estate.

4. The three pages are reproduced below as Figure 1.

5. Section 8 of the Act provides:

8   When may the Court dispense with the requirements for execution, alteration or revocation of wills?

(cf WPA 18A)

(1)  This section applies to a document, or part of a document, that—

(a)  purports to state the testamentary intentions of a deceased person, and

(b)  has not been executed in accordance with this Part.

(2)  The document, or part of the document, forms—

(a)  the deceased person’s will—if the Court is satisfied that the person intended it to form his or her will, or

(b)  an alteration to the deceased person’s will—if the Court is satisfied that the person intended it to form an alteration to his or her will, or

(c)  a full or partial revocation of the deceased person’s will—if the Court is satisfied that the person intended it to be a full or partial revocation of his or her will.

(3)  In making a decision under subsection (2), the Court may, in addition to the document or part, have regard to—

(a)  any evidence relating to the manner in which the document or part was executed, and

(b)  any evidence of the testamentary intentions of the deceased person, including evidence of statements made by the deceased person.

(4)  Subsection (3) does not limit the matters that the Court may have regard to in making a decision under subsection (2).

(5)  This section applies to a document whether it came into existence within or outside the State.

6. The pages have not been executed in accordance with the Act.

7. I am satisfied that the deceased intended the pages to form his will because:

1. they are in his handwriting;

2. he signed each page;

3. the second page was, on its face, brought into existence later than the first page, but the two pages are consecutively numbered in his handwriting;

4. they contain words consistent with the conclusion that he intended them to form his will, including the introductory words, "Consider this “my will”” and the statement that “every one of my possessions goes to Anthea”;

5. the words “No nephew inheritance” indicate an intention that the pages provide for inheritance but excluding the nephews. The negative remarks about the nephews are pertinent to his stated conclusion that they should not inherit; and

6. attempts have been made to locate some other will or testamentary instrument, but none has been found.

8. The nephews have been given notice of this application and have not participated.

9. I make orders in accordance with the short minutes of order, which I have initialled, dated today's date and placed with the papers.

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Figure 1

Decision last updated: 14 May 2024