Borthwick v Mitchell [2017] NSWSC 1145

Supreme Court New South Wales

Medium Neutral Citation: Borthwick v Mitchell [2017] NSWSC 1145 Hearing dates: 8 June 2017 Decision date: 31 August 2017 Jurisdiction: Equity - Probate List Before: Ward CJ in Eq Decision: 1. Declare that the notes dictated by Colin Junior Crisp ("the deceased") to the first plaintiff on 3 August 2013 ("the will") were the last will and testament of the deceased. 2. Declare that the Court is satisfied that the deceased knew and approved of the disposition made in the will in favour of the first plaintiff and that it was made freely and voluntarily by the deceased. 3. Order that administration of the estate of the deceased with the will annexed be granted to the plaintiffs. 4. Order that the matter be referred to the Registrar to complete the grant. 5. Order that the costs of the plaintiffs and of the defendants be paid from the estate on an indemnity basis. Catchwords: SUCCESSION – wills, probate and administration – making of a will – informal documents – dispensing with requirements for execution of a will pursuant to s 8 of the Succession Act 2006 (NSW) Legislation Cited: Evidence Act 1995 (NSW), ss 140, 142 Succession Act 2006 (NSW), ss 6, 8, 10 Uniform Civil Procedure Rules 2005 (NSW), r 7.6 Wills, Probate and Administration Act 1898 (NSW), s 18A Cases Cited: Barry v Butlin (1838) 2 Moo PC 480; 12 ER 1089 Bird v Perpetual Executors & Trustees Association of Australia Ltd (1946) 73 CLR 140 Briginshaw v Briginshaw (1938) 60 CLR 336; [1938] HCA 34 In the Estate of Beech, deceased [1923] P 46 In the Estate of Knibbs, deceased; Flay v Trueman [1962] 1 WLR 852 In the Estate of Masters (Deceased); Hill v Plummer; Plummer v Hill (1994) 33 NSWLR 446 Miller v Miller (2000) 50 NSWLR 81; [2000] NSWSC 767 National Australia Trustees Ltd v Fazey; The Estate of Nancy Elaine Lees, Late of Strathfield [2011] NSWSC 559 Newman v Brinkgreve; Estate of Verzijden [2013] NSWSC 371 NSW Trustee and Guardian v Halsey; Estate of Von Skala [2012] NSWSC 872 Permanent Trustee Co Ltd v Milton (1996) 39 NSWLR 330 Re Application of Brown; Estate of Springfield (1991) 23 NSWLR 535 Re Estate of Wai Fun Chan, Deceased [2015] NSWSC 1107 Russell v Scott (1936) 55 CLR 440; [1936] HCA 34 Tobin v Ezekiel (2012) 83 NSWLR 757; [2012] NSWCA 285 Yazbek v Yazbek [2012] NSWSC 594 Category: Principal judgment Parties: Grace Alma Lilly Borthwick (First Plaintiff) Rinsie Jamieson (Second Plaintiff) Valerie Mitchell (First Defendant) Colleen Angel (Second Defendant) Margaret Cash (Third Defendant) Marjorie Feilen (Fourth Defendant) Errol Williams (Fifth Defendant) Jeanette Rose Norton (Sixth Defendant) Heather Edwards (Seventh Defendant) Francis Williams (Eighth Defendant) Representation: Counsel: PA Tierney (Plaintiff) RW Tregenza (Defendants)