Smith, Estate of A.N.H. - Application of P.A. Smith [2009] NSWSC 907

New South Wales Supreme Court

CITATION : Smith, Estate of A.N.H. - Application of P.A. Smith [2009] NSWSC 907

HEARING DATE(S) : 31 August 2009

JUDGMENT DATE : 31 August 2009

JURISDICTION : Equity Division Probate List

JUDGMENT OF : Palmer J

EX TEMPORE JUDGMENT DATE : 31 August 2009

DECISION : Declaration as sought.

CATCHWORDS : PROBATE – INFORMAL WILL – Whether document in writing of deceased, not duly signed and attested, was intended to be his last will – question of fact.

LEGISLATION CITED : Succession Act 2006 (NSW) – s.8

CATEGORY : Principal judgment

PARTIES : Paul Andrew Smith (Plaintiff)

FILE NUMBER(S) : SC 107819/09

COUNSEL : L.J. Ellison SC (Plaintiff)

SOLICITORS : Kennedy & Cooke (Plaintiff)

107819/09 Estate of A.N.H. Smith: Application of P.A. Smith

JUDGMENT – Ex tempore

31 August, 2009

1 The Plaintiff seeks a declaration under s 8 of the Succession Act 2006 (NSW) that a document dated 14 January 2008 constitutes the last Will of the late Arthur Norman Henry Smith. All persons who could have an interest in the deceased's estate have been cited to see the proceedings. All either consent to the orders sought or do not oppose them. 2 I am satisfied that it is appropriate to proceed upon the evidence which has been tendered solely on behalf of the Plaintiff. The matter is, in my view, very simple. 3 There is no dispute that the document dated 14 January 2008 is wholly in the handwriting of the deceased. It is a stationer's form of Will. It has been fully filled in by the deceased who has appointed the Plaintiff as Executor and has then made dispositions of the whole of his estate. The document is, on the back, filled in with the name of the deceased (his initials and surname), his address and the date of the document. The document has not, however, been formally executed and witnessed as required. In fact, the space provided for the signature of the testator and the signature of witnesses has been left blank entirely, although above it the deceased has written the date of the document, "14 January 2008". 4 It seems a very obvious inference that the testator intended that the document represent his last Will. The absence of his duly witnessed signature may possibly be explained by the fact that he lived alone on a farm property with no convenient neighbours. Perhaps he could not immediately find anyone to witness his signature and contented himself with filling in the details on the back of the document, regarding that as an indication that the Will was final and immediately effective. 5 I am satisfied by the evidence adduced in support of the application that, after he had completed the documented dated 14 January 2008, the deceased made statements to third parties confirming that he had made an effective will in terms of the document. In other words, I am satisfied that the deceased did not regard the document as a draft. I refer particularly to the affidavits of the Plaintiff of 24 April 2009 and 20 May 2009, and to the affidavits of Les Smith of 5 June 2009, John Edward McGrath of 28 May 2009, Ronald Grealy of 28 May 2009, John Francis Tanner of 2 June 2009, Henry James Petterson of 2 June 2009, Lloyd Vincent Larkham of 17 August 2009, and the further affidavit of Mr P. Smith sworn 28 August 2009. 6 I am satisfied that the deceased intended the document to operate as his last Will. The helpful written submissions of Mr Ellison SC, who appears for the Plaintiff, are adopted and will remain with the file. 7 Accordingly, I make a declaration in terms of paragraph A of the Summons. Probate of the Will constituted by the document dated 14 January 2008 may be granted to the Plaintiff. I refer the application to the Registrar to perfect the grant. 8 I order that the Plaintiff have the costs of this application out of the estate on the indemnity basis. – oOo –