NSW Caselaw
New South Wales Supreme Court
CITATION : ROMANO v. ROMANO & ANOR [2003] NSWSC 436 HEARING DATE(S) : 19 and 20 May 2003 JUDGMENT DATE : 30 May 2003 JURISDICTION: PROBATE JUDGMENT OF : Bryson J at 1 DECISION : Grant probate of will and codicil, pronounce against informal document [79]
CATCHWORDS : WILLS - testamentary instruments - test of testamentary character - intention of testator - extrinsic evidence - deceased signed before 2 witnesses a document which contained directions for management of his estate when he became incapable by son who held Power of Attorney - expressions in the direction were claimed to show by implication testamentary intentions - on the construction of the document, it did not express any testamentary intention. - WILLS - testamentary capacity - soundness of mind memory and understanding - elderly (alleged) testator suffered stroke, expressed hostility to son & son's wife without rational basis - showed signs of deterioration in some respects and continuing competence in others - (as alternative ground) plaintiff had not shown sound mind memory and understanding. s.7 of the Wills, Probate and Administration Act 1898 (NSW) LEGISLATION CITED : Wills Act 1837 (UK) Income Tax Assessment Act 1936 (Cth) s66G of the Conveyancing Act 1919 (NSW) Whyte or Hamilton v. Pollok or Whyte 7 App Cas 400 Methuen v. Methuen (1817) 2 Phillimore 416; (1817) 161 ER 1186 Rhodes v. Rhodes (1882) 7 App Cas 192 Meynell Deceased, Meynell v. Meynell & Ors [1949] English Weekly Notes 273 In Re Barnes (Deceased) Public Trustee v. Barnes & Ors [1954] NZLR 714 Banks v. Goodfellow (1870) LR5QB 549 CASES CITED : Timbury v. Coffee (1941) 66 CLR 277 Bull v. Fullton (1942) 66 CLR 295 Re Hodges; Shorter v. Hodges (1988) 14 NSWLR 698 Re Estate Griffith deceased; Easter v. Griffith (unreported) 7 June 1995 Shaw & Anor v. Crichton (Unreported) 23 August 1995 Bird v. Perpetual Executors and Trustees Association (1946) 73 CLR 140 Russell v. Scott (1936) 55 CLR 440 In Re Resch's Will Trust [1969] 1 AC 514 PARTIES : Edward Romano - Plaintiff Donna Romano and Louise Romano - Defendants FILE NUMBER(S) : SC 104953/2002 COUNSEL : J. Wilson - Plaintiff I.G. Harrison SC and L. Ellison - Defendants SOLICITORS : Michie, Shehadie & Co. - Plaintiff John Fisicaro & Co. - Defendants
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