Estate of Frederick Cecil Lumb; McMillan & anor v Lumb & anor [2005] NSWSC 371

New South Wales Supreme Court

CITATION : Estate of Frederick Cecil Lumb; McMillan & anor v Lumb & anor [2005] NSWSC 371

HEARING DATE(S) : 21 March 2005

JUDGMENT DATE : 22 April 2005

Equity Division JURISDICTION : Probate List

JUDGMENT OF : Windeyer J at 1

DECISION : Document admitted to probate.

CATCHWORDS : SUCCESSION- probate - informal wills - testamentary intention - alterations made to existing draft before deceased entered hospital - document signed but not witnessed - deceased instructed daughter to retain the original document - referred to it as his will. - LEGISLATION - Wills Probate and Administration Act 1898 - s 18A.

LEGISLATION CITED : Wills Probate and Administration Act 1898 s18A

Diana Fay McMillan (First Plaintiff) William McMillan (Second Plaintiff) PARTIES : Christopher Edmund Lumb (First Defendant) Judith Ann Eslick (Second Defendant)

FILE NUMBER(S) : SC 109006 of 2004

Mr M S Willmott SC (Plaintiff) COUNSEL : Mr I D Roche (Defendants)

Owen Hodge Lawyers (Plaintiff) SOLICITORS : Hancock Alldis (Defendants)

LOWER COURT JURISDICTION :

- 9 - IN THE SUPREME COURT OF NEW SOUTH WALES EQUITY DIVISION PROBATE LIST

WINDEYER J

FRIDAY 22 APRIL 2005

109006/04 THE ESTATE OF FREDERICK CECIL LUMB; MCMILLAN V LUMB & ESLICK JUDGMENT Issue 1 The question is whether a document dated 16 December 2002 which was signed by the deceased but not witnessed should be admitted to probate under s18A of the Wills Probate and Administration Act 1898. Legislation

Section 18A is as follows: 18A Certain documents to constitute wills etc (1) A document purporting to embody the testamentary intentions of a deceased person, even though it has not been executed in accordance with the formal requirements of this Act, constitutes a will of the deceased person, an amendment of such a will or the revocation of such a will if the Court is satisfied that the deceased person intended the document to constitute the person's will, an amendment of the person's will or the revocation of the person's will. (2) In forming its view, the Court may have regard (in addition to the document) to any other evidence relating to the manner of execution or testamentary intentions of the deceased person, including evidence (whether admissible before the commencement of this section or otherwise) of statements made by the deceased person.