Tristram, Application of Eunice Helen - [2012] NSWSC 657

Supreme Court

New South Wales

Medium Neutral Citation: Tristram, Application of Eunice Helen [2012] NSWSC 657
Hearing dates: 4 June 2012
Decision date: 04 June 2012
Jurisdiction: Equity Division - Probate List
Before: White J
Decision:
Refer to para [16] of judgment.

Catchwords: WILLS, PROBATE AND ADMINISTRATION - wills - Succession Act 2006, s 8 - where documents saved on deceased's computer expressing testamentary intentions - whether intended to form will of deceased - whether deceased intended document without more to operate as will - evidence that deceased did not consider task of making will complete - mention of "will" in conversation with daughter not sufficient to show intention for either informal document to form will - informal documents expressed intentions only - held deceased died intestate
Legislation Cited: Succession Act 2006
Cases Cited: Hatsatouris v Hatsatouris [2001] NSWSC 147
In the estate of Masters (Deceased) (1994) 33 NSWLR 446
Application of Kencalo; In the Estate of Buharoff (Supreme Court of New South Wales, Powell J, 23 October 1991, unreported, BC9101481))
Bell v Crewes [2011] NSWSC 1159
Category: Principal judgment
Parties: Eunice Helen Tristram (Plaintiff)
Representation: Counsel:
G Waugh
Solicitors:
Roe Mackenzie Lawyers (Plaintiff)

File Number(s): 2012/138072

Judgment

HIS HONOUR: This application concerns the estate of Dennis Thomas Warlum who died on 13 June 2011 aged 82. The plaintiff was the deceased's de facto partner. The deceased was formerly married but that marriage was dissolved in 1984. He is survived by two children and a number of grandchildren, as well as the plaintiff. The issue for determination is whether the deceased died intestate, or whether one, or possibly two, documents, found on his computer after his death should be declared to be a document or documents that the deceased intended to form his will.

Section 8 of the Succession Act 2006 relevantly 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…

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.

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Details

Case: [2012] NSWSC 657
Decision Date: 04 June 2012

CaseChat Overview and Summary

In the matter of the estate of Eunice Helen Tristram, the deceased passed away without a formal will. The primary dispute arose regarding the validity of certain documents found on the deceased's computer, which were alleged to express her testamentary intentions. The court was tasked with determining whether these documents were intended to form a will and if the deceased intended for them to operate as such. This matter was heard in the Supreme Court of New South Wales.

The central legal issue that the court had to address was whether the informal documents saved on the deceased's computer constituted a valid will under the Succession Act 2006. The court examined whether the deceased intended these documents to serve as her will and if she considered the task of making a will complete. The court also considered the deceased's conversation with her daughter, where the term "will" was mentioned, to ascertain if this indicated an intention for the informal document to form a will.

In its judgment, the court held that the documents found on the deceased's computer did not meet the legal criteria for a valid will. The court found that the deceased did not consider the task of making a will complete, as evidenced by the informal nature of the documents and the absence of a clear expression of intent to create a will. Furthermore, the mere mention of "will" in conversation with her daughter was insufficient to establish the necessary intention for the document to function as a will. Consequently, the court concluded that the deceased died intestate, meaning her estate would be distributed according to the intestacy rules set out in the Succession Act 2006.

The final orders of the court were that the estate of Eunice Helen Tristram would be distributed in accordance with the intestacy provisions of the Succession Act 2006. The court ruled that the documents found on the deceased's computer did not constitute a valid will and did not reflect the deceased's testamentary intentions. The court further determined that the deceased had died without leaving a valid will, thereby leaving her estate to be administered under the applicable intestacy rules.

Orders