Re Estate Johnson, Deceased [2014] NSWSC 512

Supreme Court New South Wales

Medium Neutral Citation: Re Estate Johnson, Deceased [2014] NSWSC 512 Hearing dates: 14 April 2014 and thereafter in chambers Decision date: 02 May 2014 Jurisdiction: Equity Division - Probate List Before: Lindsay J Decision: 1. Declaration (pursuant to s 8 of the Succession Act 2006 NSW) to the effect that the deceased intended a document prepared for his execution to form his will notwithstanding that, at the time mirror wills of himself and his wife were executed, he erroneously executed the document prepared as his wife's will. 2. Order that probate of the will prepared for the deceased's execution, and intended by him to form his will, be granted, in solemn form, to his widow as the executrix named in the document. 3. Ancillary orders, including family provision orders made under chapter 3 of the Succession Act, to give effect to an agreement for settlement of proceedings. Catchwords: Succession - Wills Probate and Administration - Mirror wills prepared for, and executed by, husband and wife - Signatures of both duly witnessed - By mistake, husband and wife each signed will prepared for the other - Probate sought of husband's will - Effect may be given to testamentary intentions of deceased either by admission of the document prepared for the deceased to probate as an informal will (pursuant to Succession Act 2006 NSW, s 8) or by rectification of the document signed by the deceased (pursuant to s 27 of the Act) - Document prepared for deceased, but not in fact signed by him, admitted to probate as informal will. Legislation Cited: Succession Act 2006 NSW, s 8, s27 Cases Cited: Estate of Daly [2012] NSWSC 555 8 ASTLR 48 [11], [19], [20] In the Estate of Gillespie (Powell J, 25 October 1991, unrep) Public Trustee v Smith (Hodgson J, 5 November 1993) In the Estate of Hennekan (Deceased) (2009) 104 SASR 289 Texts Cited: - Category: Principal judgment Parties: Kylie Anne Farr (plaintiff) Michelle Louise Johnson (second plaintiff) Scott Matthew Johnson (third plaintiff) Vicki-Liane Margaret Johnson (defendant) Representation: Counsel: JT Kearney (defendant) Solicitors: Lamrocks (plaintiffs) McIntosh Mcphillamy & Co (defendant) File Number(s): 2012/00369255