Hines v Hines Re Estate of Bok [2006] NSWSC 1390

New South Wales Supreme Court

CITATION : Hines v Hines Re Estate of Bok [2006] NSWSC 1390

HEARING DATE(S) : 11 December 2006

JUDGMENT DATE : 11 December 2006

JURISDICTION : Equity Division Probate List

JUDGMENT OF : Windeyer J at 1

DECISION : Claim for probate of document under s18A dismissed.

CATCHWORDS : WILLS PROBATE AND ADMINISTRATION - document propounded under s18A - challenge to signature - evidence from defendant signature not that of deceased - no evidence of plaintiff that it was

LEGISLATION CITED : Wills Probate and Administration Act 1898, s18A

Andrea Hines (Plaintiff) PARTIES : Analise Hines (First Defendant) Danielle Audsley (Second Defendant

FILE NUMBER(S) : SC 116754/05

COUNSEL : Mr J Fellows (Solicitor) (Plaintiff) Mr A M Colefax SC (Defendants)

SOLICITORS : Adrian & Fellows (Plaintiff) I.V Knight, Crown Solicitor (Defendants)

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

WINDEYER J

MONDAY 11 DECEMBER 2006

116754/05 ANDREA HINES V ANALISE HINES & ANOR RE ESTATE OF STEVEN JOHN BOK

JUDGMENT

1 HIS HONOUR: The issue before the court in this matter is whether or not a document bearing a date of 16 June 2004 is a document which ought to be admitted to probate under the provisions of s18A of the Wills Probate & Administration Act 1898 being a document which sets out the testamentary intentions of the deceased and which the deceased intended without more to be his will. I should make it clear that this is the only issue to be decided by me.

2 There is a cross-claim seeking a declaration that the deceased died intestate but that is a matter which need not to be decided by the court but which I intend to have referred to the Registrar for his determination. Although there are various matters set out in the defence filed 23 November 2005 on behalf of the defendant, none of these defences are pressed other than the contention of the defendant that the document in question was not signed by the deceased. That is not denied in paragraph 1 of the defence but it is not admitted and, of course, once there is some evidence casting doubt upon that matter, the onus passes to the propounder of the document to establish its validity.