The Estate of Colleen McCullough [2018] NSWSC 1126

Supreme Court New South Wales

Medium Neutral Citation: The Estate of Colleen McCullough [2018] NSWSC 1126 Hearing dates: 22-31 May 2018 Decision date: 20 July 2018 Jurisdiction: Equity - Probate List Before: Rein J Decision: See [131], [145], [147], [168], [180], [181] and [196] Catchwords: SUCCESSION – Probate – Testamentary instruments – Whether either of two informal documents prepared by a solicitor acting for the deceased, one initialled and one signed (the one signed being witnessed), constituted a valid and intentional testamentary disposition; Issue of whether the deceased was coerced or pressured by the Defendant into signing or initialling the documents; Issue as to the date the signed document was signed (being either 24 October 2014 or 17 January 2015); HELD: Both documents were signed or initialled by the deceased on 24 October 2014; testamentary intention established, and coercion or lack of volition not established.

SUCCESSION – Probate – Testamentary instruments – Informal document purporting to operate as a codicil – Whether purported codicil initialled on 14 January 2015 was effective to revoke any testamentary disposition by the deceased on 24 October 2014; HELD: Document not a codicil pursuant to s 15 of the Wills Act 2012 (Norfolk Island), and not effective to revoke the testamentary disposition of the deceased on 24 October 2014.

COSTS – Probate litigation – Departure from rule that costs follow the event – Where Plaintiff sought costs out of the estate and Defendant seeks order that Plaintiff pay his costs and on an indemnity basis – Shorter v Hodges (1988) 14 NSWLR 698 applied – Where circumstances led reasonably to an investigation in regard to the document propounded by the successful party – Where investigation caused by neither the testator nor a party to the proceedings; HELD: Exception to the usual rule applies; Each party to pay his or her own costs of the proceedings. Legislation Cited: Civil Procedure Act 2005 (NSW) Succession Act 2006 (NSW) Uniform Civil Procedure Rules 2005 (NSW) Wills Act 2012 (Norfolk Island) Cases Cited: Banks v Goodfellow (1870) LR 5 QB 549 Baudains & Ors v Richardson & Anor [1906] AC 169 Boyse v Rossborough (1857) 6 HL Cas 1; (1857) 10 ER 1192 Burns v Burns [2016] EWCA Civ 37 Carr v Homersham [2018] NSWCA 65 Craig v Lamoureux [1920] AC 349 Glenda Phillips v James Phillips; John Matthew Phillips by his Tutor NSW Trustee & Guardian v James Phillips (No 3) [2017] NSWSC 409 Hatsatouris & Ors v Hatsatouris [2001] NSWCA 408 In Re Resch's Will Trusts [1969] 1 AC 514 In the Estate of Horne (1920) 20 SR 531 Jones v Dunkel (1959) 101 CLR 298 Lindsay v McGrath [2016] 2 Qd R 160; [2015] QCA 206 Nock v Austin (1918) 25 CLR 519 Oreski v Ikac [2008] WASCA 220 Parfitt v Lawless (1872) LR 2 P & D 462 Re Application of Brown; Estate of Springfield (1991) 23 NSWLR 535 Re Hodges; Shorter v Hodges (1988) 14 NSWLR 698 Ridge v Rowden & Anor (Santow J, Supreme Court of NSW, 10 April 1996, unreported) Stojic v Stojic [2018] NSWCA 28 Walker v Harwood [2017] NSWCA 228 Wingrove v Wingrove (1885) 11 PD 81 Winter v Crichton; Estate of Galieh (1991) 23 NSWLR 116 Category: Principal judgment Parties: Selwa Anthony (Plaintiff) Cedric Ion Newton Robinson (Defendant) Representation: Counsel: Mr K. Morrissey and Ms M. Bridgett (Plaintiff) Mr D. Murr SC and Mr D. Ash (Defendant)