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Yazbek v Yazbek

Yazbek v Yazbek

Case [2012] NSWSC 594 1 June 2012

Testamentary Intentions

Revocation of Wills

Admissibility of Evidence

Succession Law

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Supreme Court

New South Wales

Medium Neutral Citation: Alan Yazbek v Ghosn Yazbek & Anor [2012] NSWSC 594
Hearing dates: 24, 26 & 27 April 2012
Decision date: 01 June 2012
Jurisdiction: Equity Division
Before: Slattery J
Decision:
The Microsoft Word document, Will.doc, completed by the deceased on 14 July 2009 and found in his laptop computer after his death will be admitted to probate as the last will of the deceased.

Catchwords: SUCCESSION - wills, probate and administration - making of a will - deceased creates a Microsoft Word document in his personal computer - document not executed in accordance with Succession Act, s 6 - whether the document expresses the testamentary intentions of the deceased - whether the deceased intended the document to be his will - Succession Act, s 8 - revocation - document printed out of deceased's computer but not found amongst his papers after his death - Microsoft Word document not deleted from deceased's computer - whether the deceased destroyed the printed version of the document - if so, whether the deceased intended to revoke the testamentary intentions expressed within the Microsoft Word document and/or the printed document - whether the deceased no longer intended to treat the Microsoft Word document and the printed document as his will - HELD: no intention to revoke the testamentary intentions expressed in the Microsoft Word document - the Microsoft Word document satisfies Succession Act, s 8 and should be admitted to probate.
Legislation Cited: Civil Procedure Act 2005 (NSW)
Evidence Act 1995 (Cth)
Interpretation Act 1987 (NSW)
Probate and Administration Act 1898 (NSW)
Supreme Court Rules 1970 (NSW)
Cases Cited: Application of Kencalo; In the Estate of Buharoff (Unreported, NSWSC, Powell J, 23 October 1991)
Bar-Mordecai v Rotman [2000] NSWCA 123
Bell v Crewes [2011] NSWSC 1159
Cahill v Rhodes [2002] NSWSC 561
Clines v Johnston [2008] NSWSC 524
Cornish v O'Dell; In the Estate of O'Dell [2010] NSWSC 678
Costa v The Public Trustee of NSW [2008] NSWCA 223
Curley v Duff (1985) 2 NSWLR 716
Estate of Johnston [2010] NSWSC 382
Estate of Keith Joseph Cook [2011] NSWSC 881
Estate of Masters (1994) 33 NSWLR 446
Ex parte Keegan (1907) 7 SR (NSW) 565
Hatsatouris v Hatsatouris [2001] NSWCA 408
Mahlo v Hehir [2011] QSC 243
National Australia Trustees Ltd v Fazey; The Estate of Nancy Elaine Lees [2011] NSWSC 559
NSW Trustee and Guardian v Pittman - Estate of Koltai [2010] NSWSC 501
Permanent Trustee v Milton Estate of Herma Monica Brooks (1996) 39 NSWLR 30
Public Trustee v Alexander - Estate of Alexander [2008] NSWSC 1272
Public Trustee v New South Wales Cancer Council; Re Estate of McBurney [2002] NSWSC 220
Re Estate of Wilson (1991) 24 NSWLR 334.
Re Trethewey [2002] VSC 83
Stone & Drabsch v Pinniger [2011] NSWSC 795
Sugden v Lord St Leonards (1876) LR 1PD 154
Treacey & Ors v Edwards; Estate of Edwards (2000) 49 NSWLR 739
Vincent Zang v Deborah Middleton [2011] NSWSC 881
Texts Cited:

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 Yazbek v Yazbek

Details

AGLC: Yazbek v Yazbek [2012] NSWSC 594
Case: [2012] NSWSC 594
Decision Date: 01 June 2012

CaseChat Overview and Summary

The case of Yazbek v Yazbek involved a dispute over the validity of a Microsoft Word document created by the deceased, Mr Yazbek, which he intended to serve as his will. The case was heard and determined in the Supreme Court of Queensland. The primary issue before the court was whether the document expressed the testamentary intentions of the deceased and whether it satisfied the statutory requirements for a valid will under the Succession Act 2006 (Qld).

The legal issues considered by the court included whether the document constituted a valid will under the Act, and if so, whether the deceased had effectively revoked his testamentary intentions by destroying the printed version of the document. The court needed to determine whether the deceased intended the document to be his will and whether the printed version's destruction constituted a revocation of his testamentary intentions. Furthermore, the court had to consider whether the deceased intended to revoke his will by destroying the printed version of the document.

In deciding the case, the court found that there was no evidence to suggest that the deceased had the intention to revoke his testamentary intentions as expressed in the Microsoft Word document. The court noted that the document was saved on the deceased's personal computer and had not been deleted, indicating that the deceased had not intended to revoke his will. The court held that the Microsoft Word document satisfied the requirements of the Succession Act and should be admitted to probate as the deceased's will. The printed version's destruction did not amount to a revocation of the testamentary intentions expressed in the Microsoft Word document.

The court ordered that the Microsoft Word document be admitted to probate as the valid will of the deceased, Mr Yazbek. The printed version, having been destroyed, was not considered in the final determination of the will's validity.

Orders