Mortimer v David; Estate Dawn Audrey Day deceased [2005] NSWSC 1166

New South Wales Supreme Court

CITATION : Mortimer v David; Estate Dawn Audrey Day deceased [2005] NSWSC 1166

HEARING DATE(S) : 28, 29, 30 September 2005

JUDGMENT DATE : 17 November 2005

Equity Division JURISDICTION : Probate List

JUDGMENT OF : Windeyer J at 1

DECISION : Letters of administration c.t.a. revoked. Letters of administration on intestacy granted to plaintiffs as next of kin.

CATCHWORDS : PROBATE - letters of administration - application to revoke grant of letters of administration with a copy of will claimed to be lost annexed - claim last will of testatrix revoked not lost - whether will last traced to deceased - presumption of revocation - allegation that deceased had destroyed will - whether sufficient evidence to determine on the balance of probabilities that the deceased had revoked will - PROBATE - practice and procedure - grant of administration c.t.a. made in proceedings where next of kin, who had obtained earlier grant of administration on intestacy, joined as defendants and served but did not appear - whether grant in solemn form or common form - whether next of kin as defendants bound by result - proceedings in absence of party - power to set aside grant

LEGISLATION CITED : Wills Probate and Administration Act 1898 s17(3)(c)

Calder v Public Trustee [2003] NSWCA 187 Re Barraclough deceased [1967] P 1 CASES CITED : Re Izett [1982] 2 NZLR 425 Welch v Phillips [1836] 1 Moo PC 299

Richard John Mortimer and Andrew Peter Mortimer (Plaintiffs) PARTIES : Ivor David (Defendant)

FILE NUMBER(S) : SC 121467 of 2004

Ms R Whitfield (Plaintiffs) COUNSEL : Mr J B Whittle SC (Defendant)