Re Morgan [1999] NSWSC 522

New South Wales Supreme Court CITATION : Re Morgan [1999] NSWSC 522 CURRENT JURISDICTION : Equity Division Probate List FILE NUMBER(S) : 117447/98 HEARING DATE(S) : 24/05/99 JUDGMENT DATE : 24 May 1999

Alison Wood and Roy Charles Morgan (P) PARTIES : Wesley Mission (Beneficiary) Aboriginal Childrens' Advancement Society Ltd and Royal Blind Society of NSW (Opponents) JUDGMENT OF : Young J

Solicitor for plaintiffs: R Anderson (Lane & Lane) COUNSEL : Solicitor for Wesley Mission: B Bridges Counsel for opponents: M Painter Plaintiffs: Lane & Lane SOLICITORS : Wesley Mission: B Bridges Opponents: Wood Roberts CATCHWORDS : Procedure [560]; Costs; Out of estate; Probate case; When allowed; Succession [48]; Alleged informal will; Memo headed "Will" found in solicitor's file; Insufficient to show testatrix intended it to operate as a will without more ACTS CITED : (NSW) Wills Probate and Administration Act 1898 s 18A DECISION : See paras 15 and 16

THE SUPREME COURT OF NEW SOUTH WALES EQUITY DIVISION PROBATE LIST

YOUNG, J

MONDAY 24 MAY 1999

117447/98 - RE THE ESTATE OF MAVIS GWENDOLYN MORGAN

JUDGMENT 1 HIS HONOUR: This is an application for administration cta of the estate of Mavis Gwendolyn Morgan. Mavis Morgan died on 11 September 1998, aged eighty-two. At the time of her death she was living in Toukley. 2 On 3 April 1998 she made a will through Messrs Nash Allen Williams & Wotton solicitors of Toukley. In this will she gave her nieces, Alison and Lesley one-third of the estate each and gave a quarter of a third to each of the Aboriginal Childrens' Advancement Society Ltd, Salvation Army, Catholic Archdiocese of Sydney Chancery Office and the Royal Blind Society. She made her niece Alison and Alison's husband her executors. 3 On the 29th of the same month the testatrix saw Mr Randall solicitor of Newcastle. She gave Mr Randall instructions. He prepared the will in accordance with those instructions and posted it to her home at Toukley. He requested that the testatrix inform him of the addresses of the nieces and of Roy Charles Morgan, a nephew. 4 On 3 June 1998 the testatrix visited Mr Randall's office and delivered the will to him duly executed. This will has on it the date 29 May 1998 and was witnessed by two retired people in Toukley. There is no doubt that if it were not for a document to which I am about to refer that that was the last will of Mavis Morgan. 5 There is admitted in evidence as Exhibit PX02 a handwritten document in the handwriting of the testatrix, which is headed "WILL. June 1998." This document on the first line sets out the testatrix's full name and address, then the names of the two nieces and their husbands' names in brackets, and their addresses, and the nephew's address; a six line note which also appeared in both the April and May wills as to how the testatrix wanted to be cremated and where she wished her ashes to lay and then these words: "(1. As third (1/3) each to nieces Alison and Lesley (1/3 and 1/3) (2. The remaining one third to be divided between 1) the nephew Roy Morgan - 49 Avon Road Pymble 2075