The Estate of Walter Ostro [2021] NSWSC 495

Supreme Court New South Wales

Medium Neutral Citation: The Estate of Walter Ostro [2021] NSWSC 495 Hearing dates: 29 April 2021 Date of orders: 29 April 2021 Decision date: 29 April 2021 Jurisdiction: Equity Before: Hallen J Decision: See Paragraph 164 of these reasons Catchwords: SUCCESSION – Probate and administration –Document purporting to state the testamentary intentions of the deceased was handwritten, signed, and dated by him – Deceased's signature on the document not witnessed in accordance with how a Will should be executed – Dispensing with requirements for due execution of a will pursuant to s 8 of the Succession Act 2006 (NSW) – No dispute that there was a document and that it purported to state the testamentary intentions of the deceased and that it had not been executed in accordance with Part 2.1 of the Succession Act – Question whether the deceased intended that the document form his will and/or a full or partial revocation of the deceased's duly executed and professionally drawn 1993 Will (that had already been revoked) – Evidence sufficient to permit a finding that deceased intended that the document form his Will and a full revocation of the 1993 Will Legislation Cited: Evidence Act 1995 (NSW) Interpretation Act 1987 (NSW) Probate and Administration Act 1898 (NSW) Succession Act 2006 (NSW) Supreme Court Rules 1970 (NSW) Uniform Civil Procedure Rules 2005 (NSW) Wills Probate and Administration Act 1898 (NSW) Cases Cited: Belcastro v Belcastro [2004] WASC 111 Borthwick v Mitchell [2017] NSWSC 1145 In the Estate of Kiepas (Dec'd); Twemlow v Kiepas [2004] NSWSC 452 In the Estate of Knibbs, deceased; Flay v Trueman [1962] 1 WLR 852 In the Estate of Margaret, Deceased [2012] NSWSC 1490 In the Estate of Masters (Deceased); Hill v Plummer (1994) 33 NSWLR 446 In the Estate of Stewart (Supreme Court (NSW), Cohen J, 12 April 1996, unrep) In the Estate of Williams, deceased (1984) 36 SASR 423 In the Will of Lobarto Shields v Caratozzolo (1991) 6 WAR 1 Kalamunda Meat Wholesalers Pty Ltd v Reg Russell & Sons Pty Ltd (1994) 51 FCR 446; [1994] FCA 1059 Lindsay v McGrath [2016] 2 Qd R 160; [2015] QCA 206 Marley v Rawlings [2013] Ch 271; [2012] EWCA Civ 61 Newman v Brinkgreve; Estate of Verzijden [2013] NSWSC 371 Oreski v Ikac [2008] WASCA 220 Plunkett v Bull (1915) 19 CLR 544; [1915] HCA 14 Public Trustee v Commins; The Estate of Gwendolyn Myrtle Wray (Supreme Court (NSW), Powell J, 19 June 1992, unrep) Re Application of Brown; Estate of Springfield (1991) 23 NSWLR 535 Re Broad, Smith v Draeger [1901] 2 Ch 86 Re Estate of Angius [2013] NSWSC 1895 Re Estate of Brock; Chambers v Dowker (2007) 1 ASTLR 127; [2007] VSC 415 Re Estate of O'Dell [2010] NSWSC 678 Re Nicholls [1996] 1 Qd R 179 Re Sanders [2016] VSC 694 Rodny v Weisbord (2020) 102 NSWLR 403; [2020] NSWCA 22 Romano v Romano [2003] NSWSC 436 Russell v Scott (1936) 55 CLR 440 at 454; [1936] HCA 34 Snape v Gibson; Re Estate of Paul Francis Snape [2006] NSWSC 829 The Estate of Kevin John Hines v Hines [1999] WASC 111 Weisbord v Rodny; Rodney v Weisbord [2018] NSWSC 1866 Wood v Smith [1993] Ch 90 (CA) Yazbek v Yazbek [2012] NSWSC 594 Texts Cited: Shorter Oxford English Dictionary (6th ed 2007, Oxford University Press) Category: Principal judgment Parties: Veronica Ostro (Plaintiff) Pamela Frances Smith (First Defendant) Nadja Dinneen (Second Defendant) Representation: Counsel: Mr M Southwick (Plaintiff) Mr D Liebhold (First Defendant) Ms N Dinneen (in person)