Allen v Kroll-Simmul [2005] NSWSC 453

New South Wales Supreme Court

CITATION : Allen v Kroll-Simmul [2005] NSWSC 453

HEARING DATE(S) : 19/04/05, 20/04/05, 21/04/05

JUDGMENT DATE : 17 May 2005

JUDGMENT OF : Gzell J

DECISION : Grant of probate in solemn form. Cross claim propounding statement of wishes dismissed.

CATCHWORDS : SUCCESSION - Wills, Probate and Administration - Probate and letters of administration - Probate in solemn form - Whether deceased lacked testamentary capacity - Earlier statement of wishes - Whether a testamentary disposition in terms of the Wills, Probate and Administration Act 1898, s 18A - No principles involved

LEGISLATION CITED : Wills, Probate and Administration Act 1898

Banks v Goodfellow (1870) LR 5 QB 549 CASES CITED : Perpetual Trustee Co Ltd v Fairlie-Cunninghame (1993) 32 NSWLR 377 In Re Devoy (1943) St R Qd 13

Graeme Royce Allen - Plaintiff PARTIES : Tiiu Kroll-Simmul - Defendant

FILE NUMBER(S) : SC 4649/03

Mr M Willmott SC - Plaintiff COUNSEL : Mr R Nair - Defendant

Champion Legal Solicitors SOLICITORS :

LOWER COURT JURISDICTION :

IN THE SUPREME COURT OF NEW SOUTH WALES EQUITY DIVISION

GZELL J

TUESDAY 17 MAY 2005

4649/03 GRAEME ROYCE ALLEN v TIIU KROLL-SIMMUL JUDGMENT 1 Graeme Royce Allen propounds as the last will of Armilda Leesmae, late of Berala, New South Wales, a document dated 16 October 2001 naming him as executor and devising and bequeathing to him the entire estate of the deceased. Tiiu Kroll-Simmul opposed the grant of probate of the document on the ground that the deceased was not of sound mind, memory and understanding when she executed it. By her cross claim, Mrs Kroll-Simmul propounds a statement of wishes dated 15 February 2000. 2 As the estate of the deceased might pass to the Crown as bona vacantia, a citation to see proceedings issued to the New South Wales Treasury (Crown Asset and Liability Branch). The Crown Solicitor's Office responded that the New South Wales Treasury would accept whatever the court determined.