PAHLOW-SILADY v SILADI [1997] NSWCA 241

PAHLOW-SILADY v SILADI SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL

GLEESON CJ, MASON P and POWELL JA 18 March 1997, 22 April 1997

[1997] NSWCA 241

Wills Probate and Administration - Testamentary instruments — Informal document — Document entitled "Statutory Declaration" — Document drafted by wife of deceased on own initiative — Whether embodying testamentary intentions of deceased — Whether deceased intended document to constitute his will.

Wills Probate and Administration Act 1898, s18A.

Gleeson CJ I have had the benefit of reading in draft form the judgments of the other members of the court.

The disposition of the appeal which I favour is that reflected in the first of the two alternative sets of orders proposed by Powell JA. In short, I consider that the appeal should be allowed and the matter should be remitted to the Probate Division. I also agree with the order for costs proposed by Powell JA.

During the course of argument I became convinced that Santow J did not have before him a sufficiently clear and cogent account of the facts relevant to the issues which arose for determination.

The document, entitled Statutory Declaration, at the centre of this litigation refers to assets described as "my one-third share in the business of Derwent Thermostats Pty Ltd and Derwent Controls, 27 Higginbotham Road, Gladesville" and "my half-share in the business of Derwent Properties". So far as appears from the record of the proceedings before Santow J, the evidence at first instance contained no clear description of the nature of those assets. Some of the observations made by Santow J in his reasons for judgment suggest that his Honour had reference to an Affidavit of Assets and Liabilities in the court file, but that document does not appear to have been tendered in evidence, the meaning of some of the information in it is unclear, and the evidence did not include any attempt to explain or elaborate upon its contents.