Vincent Zang v Deborah Middleton; The estate of Keith Joseph Cook, late of Balgowlah [2011] NSWSC 881

Supreme Court New South Wales

Medium Neutral Citation: Vincent Zang v Deborah Middleton; The estate of Keith Joseph Cook, late of Balgowlah [2011] NSWSC 881 Hearing dates: 25 July 2011 Decision date: 25 July 2011 Jurisdiction: Equity Division Before: Slattery J Decision: Declaration that the instrument dated 1 April 2007 attached to the Court's orders is the last will and testament of the deceased, Keith Joseph Cook; proceedings otherwise dismissed; the parties' agreements as to costs are noted. Catchwords: SUCCESSION - wills, probate and administration - probate and letters of administration - 1 April 2007 instrument propounded as a will of the deceased does not comply with the Succession Act, s 6 formal requirements for a will - whether the Court should under Succession Act, s 8 dispense with the requirements for execution of the instrument as a will - proceedings settled - analysis of whether the circumstances justify the making of a Succession Act, s 8 order - HELD: the April 2007 instrument is a document that purports to state the testamentary intentions of the deceased and the deceased intended it to form his will - COSTS - agreement as to costs upon an exchange of correspondence - dispute as to whether costs agreed to be paid on the ordinary basis or on the solicitor and client basis - HELD: upon the true construction of the terms agreed in the correspondence the parties agreed that the costs of Deborah Middleton and Sharon Cook be paid out of the deceased's estate on the solicitor and client basis. Legislation Cited: Civil Procedure Act 2005 (NSW), s 73 Family Provision Act 1982 (NSW) Probate and Administration Act (NSW) 1898, s 18A Succession Act 2006 (NSW), ss 6, 8 Uniform Civil Procedure Rules 2005, Rule 42.2 Cases Cited: Brown v M'Encroe (1890) 11 LR (NSW) Eq 134 Calderbank v Calderbank [1975] 3 All ER 333 Hatsatouris v Hatsatouris [2001] NSWCA 408 In the estate of O'Dell [2010] NSWSC 678 Perpetual Trustee Co Ltd v Baker [2011] FMCA 264 PMT Partners Pty Limited (In Liquidation) v Australian National Parks and Wildlife Services (1995) 184 CLR 301 Re estate of Paul Francis Hodges Deceased; Shorter v Hodges (1988) 14 NSWLR 698 Category: Costs Parties: Defendant/Cross Claimant - Deborah Middleton Cross-Defendant - Vincent Zang Second Cross-Defendant - Yan Zhao Representation: Plaintiff/Cross Defendants - J.S. Emmett Defendant/Cross Claimant - R.N. O'Neill Plaintiff/Cross Defendants - Esplin Solicitors Defendant/Cross Claimant - Coleman Greig Lawyers File Number(s): 2010/109397; 2010/142352 Publication restriction: No