Ortner v Mewjork – Estate of Shing [2009] NSWSC 1381

New South Wales Supreme Court

CITATION : Ortner v Mewjork – Estate of Shing [2009] NSWSC 1381

HEARING DATE(S) : 7 & 8 December 2009

JUDGMENT DATE : 10 December 2009

JURISDICTION : Equity

JUDGMENT OF : White J

DECISION : 1. The plaintiff's claims for relief in paras 1-4 of the statement of claim be dismissed; 2. orders in accordance with paras 1 and 2 of the first cross-claim; 3. the proceedings be referred to the Registrar to complete the grant of letters of administration to the defendant on an intestacy; 4. Exhibits may be returned after 28 days.

CATCHWORDS : SUCCESSION - wills, probate and administration – declaration sought under s 18A Probate and Administration Act 1898 that document apparently signed by deceased is a testamentary document – document said to be written by friend of deceased and signed by deceased – experts identified dissimilarities between propounded signature and specimen signatures of deceased – forgery not established but suspicion not allayed – not satisfied that deceased intended propounded document to be his will – whether absence of alleged duplicate of will creates presumption of revocation in any event – application dismissed

LEGISLATION CITED : Probate and Administration Act 1898 (NSW) Succession Act 2006 (NSW)

CATEGORY : Principal judgment

Burnside v Mulgrew & Anor; Re the Estate of Doris Grabrovaz [2007] NSWSC 550 CASES CITED : Tyrrell v Painton [1894] P 151 Vernon v Watson [2002] NSWSC 600 Colvin v Fraser 2 Hagg Ecc 274 at 229-330; 162 ER 856

TEXTS CITED : Sunnocks, Martyn and Garnett, Williams, Mortimer and Sunnucks on Executors, Administrators and Probate, 17th ed (1993)