Heffernan v Innes & Anor [2021] NSWSC 1033

Supreme Court New South Wales

Medium Neutral Citation: Heffernan v Innes & Anor [2021] NSWSC 1033 Hearing dates: 13 – 15, 19 – 21 July 2021 Date of orders: 17 August 2021 Decision date: 17 August 2021 Jurisdiction: Equity Before: Hallen J Decision: See [25] – [26] Stand over the proceedings for mention to determine the form of orders to be made and to consider manner in which the question of how the costs of the proceedings are to be borne is to be determined Catchwords: SUCCESSION – Probate and administration –Whether Court satisfied that a document which was handwritten, but unsigned and undated, by the deceased, purports to state the testamentary intentions of the deceased and was intended by him to form his Will – Dispensing with requirements for due execution of a will pursuant to s 8 of the Succession Act 2006 (NSW) – Question raised whether the deceased had testamentary capacity due to alcohol consumption – No evidence of temporal link between when informal document written and the alcohol consumed – Evidence, sufficient for Court to be satisfied that the deceased had testamentary capacity, that he knew and approved the contents of the informal document (which was not in dispute), and that he intended the informal document to form his Will SUCCESSION – Defendants raise allegation of an earlier will made by the deceased which was not found and the original, a copy, or even a draft, of which no one had seen – Reference to a will made by the deceased months before his death - Defendants assert that the unfound Will was removed by the father of the Plaintiff, after the deceased's death, from the deceased's home – Serious allegation of what may be criminal conduct under s 135 Crimes Act 1900 (NSW) made - Court not satisfied of the existence of the unfound Will or that it had been removed by the Plaintiff's father bearing in mind the whole of the evidence and s 140 of the Evidence Act 1995 (NSW) Whether presumption of destruction of unfound Will animo revocandi rebutted - Onus on the Defendants to rebut presumption - Court satisfied that even if the unfound Will existed, the presumption of destruction by the deceased with intention to revoke that Will had not been rebutted Alternative claim by the Plaintiff that the deceased died intestate – No dispute that whole estate passes to the Plaintiff under the operation of the rules of intestacy if informal document not intended to form his Will and if the Court not satisfied that the unfound Will existed, or even if it existed, was not removed by the Plaintiff's father Legislation Cited: Coroners Act 2009 (NSW) Crimes Act 1900 (NSW) Criminal Procedure Act 1986 (NSW) Evidence Act 1995 (NSW) Evidence (Audio and Audio-Visual Links) Act 1998 (NSW) Family Law Act 1975 (Cth) Succession Act 2006 (NSW) Supreme Court Rules 1970 (NSW) Cases Cited: Aaron v Griffiths [2008] WASC 26 Ackerley v Felton [2012] NSWSC 1468 Annetts v McCann (1990) 170 CLR 596; [1990] HCA 57 ANZ Executors & Trustee Co Ltd v McNab (1999) 3 VR 666 Banks v Goodfellow (1870) LR 5 QB 549 Belcastro v Belcastro [2004] WASC 111 BestCare Foods Ltd v Origin Energy LPG Ltd (formerly Boral Gas (NSW) Pty Ltd) [2010] NSWSC 1304 Briginshaw v Briginshaw (1938) 60 CLR 336; [1938] HCA 34 Brown v New South Wales Trustee and Guardian (2012) 10 ASTLR 164; [2012] NSWCA 431 Burrows v Burrows (1827) 1 Hagg Ecc 109; (1827) 162 ER 524 Cahill v Rhodes [2002] NSWSC 561 Cavanett v Chambers [1968] SASR 97 Curtin deceased: Curtin [2015] IEHC 62 Estate of Trethewie [1913] VLR 26 Fielder v Burgess [2014] SASC 98 Finding into Death with Inquest of Boursinos, Spiros [2021] VicCorC 27076; COR 2018 5273 Fox v Percy (2003) 214 CLR 118; [2003] HCA 22 Greer v Greer [2021] QCA 143 Hatsatouris v Hatsatouris [2001] NSWCA 408 In re Berger, dec'd [1990] 1 Ch 118 In re Dellow's Will Trusts [1964] 1 WLR 451 In the Estate of Knibbs, deceased; Flay v Trueman [1962] 1 WLR 852 In the Estate of the Late Horst Paul Hartung [2021] NTSC 51 In the Estate of Margaret, Deceased [2012] NSWSC 1490 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 Estate of Athena Yiossis [2011] SASC 99 Inquest into death of Julie Ann Hermans [2020] ACTCD 4 International Finance Trust Company Limited & Anor v NSW Crime Commission & Ors (2009) 240 CLR 319; [2009] HCA 49 Jones v Dunkel (1959) 101 CLR 298; [1959] HCA 8 Lithgow City Council v Jackson (2011) 244 CLR 352; [2011] HCA 36 Maaz v Fullerton Property Pty Ltd [2021] NSWCA 79 MacDonald v MacDonald [2012] NSWSC 1376 McCauley v McCauley (1910) 10 CLR 434; [1910] HCA 16 Musa v Alzreaiawi [2021] NSWCA 12 Neat Holdings Pty Ltd v Karajan Holdings Pty Ltd (1992) 67 ALJR 170; [1992] HCA 66 New South Wales Trustee and Guardian v Pittman; Estate of Koltai [2010] NSWSC 501 O'Donohue v O'Donohue [2011] IEHC 511 Public Trustee v Commins; The Estate of Gwendolyn Myrtle Wray (Supreme Court (NSW), Powell J, 19 June 1992, unrep) R v Registrar-General; Ex parte Lange [1950] VLR 45 R v South London Coroner; Ex parte Thompson (1982) 126 Solicitors Journal 625 Re Application of Brown; Estate of Springfield (1991) 23 NSWLR 535 Re Bridgen [1938] Ch. 205 Re Bubnich; Marian v Bubnich [1965] WAR 138 Re Day (2017) 91 ALJR 262; [2017] HCA 2 Re Estate of Angius [2013] NSWSC 1895 Re Estate of Brock; Chambers v Dowker (2007) 1 ASTLR 127; [2007] VSC 415 Re GEW [2020] QSC 119 Re Hodges (1988) 14 NSWLR 698 Re Nicholls [1996] 1 Qd R 179 Re Sanders [2016] VSC 694 Richardson v Pedler [2001] NSWSC 221 Rodny v Weisbord (2020) 102 NSWLR 403; [2020] NSWCA 22 Ryan v Kazacos; Estate of Michael Harvey Kazacos (2001) 183 ALR 506; [2001] NSWSC 140 S Kidman & Co Ltd v Dr John Lowndes CM & Anor [2016] NTCA 5 Snape v Gibson; Re Estate of Paul Francis Snape [2006] NSWSC 829 Stuart v Kirkland-Veenstra (2009) 237 CLR 215; [2009] HCA 15 Sutton v Sadler (1857) 3 CBNS 87; (1857) 140 ER 67 Symes v Green (1859) 1 Sw & Tr 401; (1859) 164 ER 785 The Estate of Bradley Scott Lyons [2021] NSWSC 197 The Estate of Kevin John Hines v Hines [1999] WASC 111 The Estate of Walter Ostro [2021] NSWSC 495 Tobin v Ezekiel [2012] NSWCA 285 Webb v Ryan [2012] VSC 377 Weisbord v Rodny; Rodney v Weisbord [2018] NSWSC 1866 Whiteley v Clune (No 2) The Estate of Brett Whiteley (Unreported, Supreme Court of New South Wales, 13 May 1993) Whyte v Pollok (1882) 7 App. Cas. 400 Wood v Smith [1993] Ch 90 (CA) Texts Cited: S Odgers, Uniform Evidence Law (15th ed, Lawbook Co, 2020) Category: Principal judgment Parties: Lisa Louise Heffernan (Plaintiff)