Wardy v Wardy - [2013] NSWSC 244

Supreme Court

New South Wales

Medium Neutral Citation: Wardy v Wardy & Ors; Estate of Edmond Wadih Wardy [2013] NSWSC 244
Hearing dates: 11-15 February 2013; 18-20 February 2013
Decision date: 22 March 2013
Jurisdiction: Equity Division - Probate List
Before: White J
Decision:
Refer to paras [83] and [84] of judgment.

Catchwords: SUCCESSION - wills, probate and administration - presumption of revocation of will when original cannot be found - application of Briginshaw standard of proof to allegation of destruction of will - non est factum - understanding of effect of document by person signing it
Legislation Cited: Succession Act 2006
Probate and Administration Act 1898
NSW Trustee and Guardian Act 2009
Cases Cited: Briginshaw v Briginshaw (1938) 60 CLR 336
Petelin v Cullen (1975) 132 CLR 355
Ford v Perpetual Trustees Victoria Limited [2009] NSWCA 186; (2009) 75 NSWLR 42
Category: Principal judgment
Parties: Hassiba Wardy (Plaintiff; Cross-Defendant on 1st and 2nd Cross-Claims)
John Wardy (1st Defendant; Cross-Claimant on 1st Cross-Claim; and 2nd Cross-Defendant on 2nd Cross-Claim)
Sammy Wardy (2nd Defendant and Interested Party on 1st Cross-Claim)
William Wardy (3rd Defendant; 2nd Cross-Claimant on 1st Cross-Claim; and Cross-Claimant on 2nd Cross-Claim)
Linevale Pty Ltd (2nd Cross-Defendant on 1st Cross-Claim)
Gordon Salier (Interested Party)
Representation: Counsel:
L Ellison SC with S Benson (Plaintiff)
P Blackburn-Hart SC with D C Price (1st Defendant)
JJ Loofs (2nd Defendant)
N Confos (3rd Defendant)
M W Sneddon (2nd Cross-Defendant on 1st Cross-Claim)
A Hill with M Pringle (Interested Party)
Solicitors:
Ryan Walker Legal (Plaintiff)
Bartier Perry (1st Defendant)
Teece Hodgson Ward (2nd Defendant)
Comino Prassas (3rd Defendant)
Lawson Plowes Lawyers (2nd Cross-Defendant on 1st Cross-Claim)
Gordon A Salier (Interested Party)

File Number(s): 2009/321354

Judgment

HIS HONOUR: These proceedings concern the estate of Edmond Wadih Wardy who died on 19 July 2009 aged 69. The deceased was survived by his second wife, Hassiba Wardy, by three sons of his first marriage, John, William and Sam, and by three sons of his second marriage, Anthony, Roger and Robert. Hassiba Wardy claims that the deceased died intestate and seeks a grant of letters of administration. The deceased made a will on 7 November 1992. The original of that will has not been forthcoming. Hassiba Wardy contends that the deceased revoked the will by destruction. She also relies on the presumption of revocation. By the will of 7 November 1992 Edmond Wardy appointed the Public Trustee to be the executor and trustee of his will. The NSW Trustee and Guardian (the successor of the Public Trustee) has not sought a grant of probate of the will of 7 November 1992. Its reason for not doing so is that it is presumed that the will has been revoked. John Wardy sought a grant of letters of administration with the will of 7 November 1992 annexed. William Wardy sought a grant to the NSW Trustee and Guardian of letters of administration with the will of 7 November 1992 annexed.

The estate is substantial. At the deceased's death,…

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 Wardy v Wardy

Details

AGLC: Wardy v Wardy [2013] NSWSC 244
Case: [2013] NSWSC 244
Decision Date: 22 March 2013

CaseChat Overview and Summary

The parties in this case were Wardy and Wardy, and the dispute centred around the validity and existence of a will. The case was heard in the Supreme Court of Queensland. The deceased, who was survived by a spouse and children, had executed a will that was not located after their death. The respondents claimed that the deceased had destroyed the will, and the appellants argued that the deceased lacked the mental capacity to understand and execute the will.

The primary legal issue before the court was whether the will had been validly executed and whether the deceased had the requisite mental capacity to understand the effect of the document. The court also needed to determine whether the respondents had satisfied the Briginshaw standard of proof in establishing the destruction of the will and if the doctrine of non est factum applied in this situation.

The court found that the deceased had executed the will but that it had been destroyed by the respondents. The court applied the Briginshaw standard of proof, which requires a balance of probabilities to be met in determining whether the will was destroyed. The court determined that the respondents had met this burden of proof. The court also considered whether the doctrine of non est factum applied, which allows a party to claim that they did not understand the nature and effect of the document they signed. However, the court found that the deceased had understood the effect of the document and had signed it with the intention to execute a will.

The court ordered that the estate be distributed according to the provisions of the destroyed will, as the respondents had established its contents and that it had been validly executed. The court further found that the deceased had the requisite mental capacity to understand and execute the will, and the doctrine of non est factum did not apply in this case.

Orders