Estate of Scott; Re Application for Probate [2014] NSWSC 465

Supreme Court New South Wales

Medium Neutral Citation: Estate of Scott; Re Application for Probate [2014] NSWSC 465 Hearing dates: 31 March 2014 and, subsequently, in chambers Decision date: 24 April 2014 Jurisdiction: Equity Division Before: Lindsay J Decision: Order that a statutory will (authorised by an order made under the Succession Act 2006 NSW, s 18(1), but not signed by the Registrar or sealed by the Court pursuant to s 23 of the Act) be admitted to probate, having regard to the power conferred on the Court under s 18(5) Catchwords: SUCCESSION - Wills, Probate and Administration - Statutory Will - Where an order authorising a will to be made on behalf of a person lacking testamentary capacity made by the Court, but the will was not signed or sealed by the Registrar - Court has power to give any necessary related orders and directions - order that the will be admitted to probate. Legislation Cited: Probate and Administration Act 1898 NSW Supreme Court Rules 1970 NSW) and Part 78 r 3; r 42 Succession Act 2006 NSW, s 18 Uniform Civil Procedure Rules 2005 NSW Cases Cited: Andrew v Andrew (2012) 81 NSWLR 656 at 661 [16] and 664 [34]-665 [36] Dickman v Holley; Estate of Simpson [2013] NSWSC 18 at [135]-[142]. Osborne v Smith (1960) 105 CLR 153 at 158-159 Perpetual Trustee Company Ltd v Fairlie-Cunninghame (1993) 32 NSWLR 377 at 384 Re Dowling; sub nom NSW Trustee & Guardian v Crossley [2013] NSWSC 1040 at [23]-[25]. Re Estate Gowing: Application for Executor's Commission [2014] NSWSC 247 at [100]-[105] Re Fenwick (2009) 76 NSWLR 22 at 51 [132]; Re Will of Jane [2011] NSWSC 624 at [52]-[100] Scott v Scott [2012] NSWSC 1541 at [295]-[318] Tobin v Ezekiel [2012] NSWCA 285 at [3]-[18], especially [8] Tomko v Plasty (No 2) (2008) 71 NSWLR 61 at 64 [4] - 65 [11] Texts Cited: A Underhill, "Changes in the Law of Real Property" in the Council of Legal Education's A Century of Law Reform (MacMillan, London, 1901), pp 321-322 Hansard, NSW Legislative Assembly, 19 September 2006, p 1858 JM Bennett, A History of the Supreme Court of NSW (LBC, Sydney 1974), p 133 LL Fuller, Legal Fictions (Stanford UP, 1967), chapter 1 RS Geddes, CJ Rowland and P Studdert, Wills, Probate and Administration Law in NSW (LBC, Sydney, 1996) WJV Windeyer, Lectures on Legal History (LBC, 2nd revised ed, 1957), pp 38, 56, 286 Williams and McCullough, Statutory Will Applications: A Practical Guide (Lexis Nexis Butterworths, Australia, 2014) at para [2.22] Category: Principal judgment Parties: Peter Richard Baker (First Plaintiff) Louise Baker (Second Plaintiff) Representation: Counsel: Simon Burchett (Plaintiffs) Solicitors: Peter Baker (Plaintiffs) File Number(s): 2013/00176976 2014/00008620