NSW Caselaw
New South Wales Supreme Court
CITATION : Phillpot v Olney [2004] NSWSC 592 HEARING DATE(S) : 28/06/04 JUDGMENT DATE : 6 July 2004
JUDGMENT OF : White J DECISION : 1. Dismiss the application by the plaintiff for a declaration under s 18A of the Wills Probate and Administration Act that two hand written documents, undated, or either of them, constitutes the will of the deceased; 2. Subject to due compliance with the Rules of Court, Letters of Administration be granted to the defendant, Lindsay Olney; 3. The proceedings be remitted to the Registrar to complete the grant; 4. Otherwise make orders in accordance with paragraphs 3 and 7 of the Short Minutes of Order signed by counsel for the parties and dated 10 June 2004; 5. Note the undertaking to the Court of Lindsay Olney recorded in paragraph 4 of such Short Minutes of Order; 6. Note the undertaking to the plaintiff of Lindsay Olney recorded in paragraph 5 of the Short Minutes of Order and the agreement of the parties recorded in paragraph 6 of the Short Minutes of Order.
CATCHWORDS : Wills, Probate and Administration - Orders by consent - Grant of letters of administration a public act - Orders not to be made as a matter of course - Testamentary capacity - Circumstances surrounding suicide relevant to capacity. LEGISLATION CITED : Wills Probate and Administration Act 1898 (NSW) Family Provision Act 1982 (NSW) Re Podger [1957] VR 275 Re Grey deceased [1978] VR 596 Re Irving deceased [2003] VSC 351 McMahon v McMahon (Young J, 02/08/85, unreported) CASES CITED : Banks v Goodfellow (1870) LR 5QB 549 Bailey v Bailey (1924) 34 CLR 558 Bull v Fulton (1952) 66 CLR 295 Re Hodges; Shorter v Hodges (1988) 14 NSWLR 698 Ridge v Rowden; Estate of Dowling (Santow J, 10/04/96, unreported) Mason & Handler, Wills Probate and Administration Service Janelle Therese Phillpot PARTIES : v Lindsay Olney Estate of Tracey Maree Aubin FILE NUMBER(S) : SC 111929/03 COUNSEL : Plaintiff: I Wales SC Defendant: L Ellison SOLICITORS : Plaintiff: Ken Johnston Bedford & Co by their City Agents Morris Hayes & Edgar Defendant: Phelps Reid, Lawyers
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