Weisbord v Rodny; Rodny v Weisbord [2018] NSWSC 1866

Supreme Court New South Wales

Medium Neutral Citation: Weisbord v Rodny; Rodny v Weisbord [2018] NSWSC 1866 Hearing dates: 9 - 19 October 2017; 13 November 2017; 9 - 12 April 2018 Decision date: 06 December 2018 Jurisdiction: Equity Before: Robb J Decision: 1. The plaintiffs are entitled to an order revoking the grant of probate made by this Court on 15 January 2016 to the defendant of the will of the late Rose Rodny made on 19 December 1997.

2. The plaintiffs are entitled to an order granting administration with the document described in par 4(d) of the amended statement of claim as the "unsigned Will prepared in August 2008" (being the final form of the document prepared by John Lloyd, Solicitor, on 15 August 2008) annexed to an appropriate administrator of the estate of the late Rose Rodny.

3. The defendant's cross claim is to be dismissed.

4. Consequently upon orders in terms of pars 1 and 2 being made, each of the plaintiffs' claims for family provision orders is to be dismissed.

5. The parties are to bring in short minutes of order within 14 days to give effect to these reasons (see pars 534 to 543 below), and if agreement cannot be reached, the proceedings may be relisted by arrangement with the associate to Robb J.

6. The Court will hear the parties as to the costs of the proceedings, if agreement is not reached between them, by arrangement with the associate to Robb J.

7. The parties may within 7 days make suggestions to the associate to Robb J as to the appropriate application of the Court's Identity theft prevention and anonymisation policy to these reasons, and these reasons will not be published until after that period has elapsed. Catchwords: SUCCESSION — Wills, probate and administration — Probate and letters of administration — Construction and effect of testamentary dispositions — Contending wills — Whether a grant of probate of the deceased's 1997 will should be revoked and administration should be granted to an appropriate administrator with a draft will of the deceased prepared on 15 August 2008 annexed — Application of s 8 Succession Act 2006 (NSW) — Alternatively, application of principles concerning lost wills — Where deceased had the intention to make a new will in terms of a draft will — Where no signed will in those terms has been found after the deceased's death — Where the deceased made statements to the effect that she had made a new will in the terms of the draft will — Where the evidence was inadequate to establish the particular reasons why the deceased understood that she had made a new will in the terms of the draft will — Where it is not possible to identify the particular document of a number of identical versions of the draft will that the deceased intended to operate as her will — Where the deceased may not have seen the final version of the draft will although it was prepared in accordance with her instructions — Where it is possible that the deceased did execute a version of the draft will but the will has been lost — The plaintiffs are entitled to orders revoking the grant of probate of the 1997 will and an order that a grant of administration be made with the draft 2008 will annexed. Legislation Cited: Succession Act 2006 (NSW) Probate and Administration Act 1898 (NSW), Cases Cited: Estate of Laura Angius; Angius v Angius [2013] NSWSC 1895 The Estate of Drummond; Drummond v Drummond [2017] NSWSC 856 Yazbek v Yazbek [2012] NSWSC 594 Hatsatouris v Hatsatouris [2001] NSWCA 408 In the estate of Ralston, 12 September 1996, Supreme Court of New South Wales, unreported (BC 9604329) Cahill v Rhodes [2002] NSWSC 561 Payten v Perpetual Trustee Company [2005] NSWSC 345 Clines v Johnston [2008] NSWSC 524 Deeks v Greenwood [2011] WASC 359 Fast v Rockman [2013] VSC 18 Mahlo v Hehir [2011] QSC 243 Category: Principal judgment Parties: Proceedings 2016/00225246: Jeannette Weisbord (first plaintiff/cross defendant) Alexander Weisbord (second plaintiff) Joel Weisbord (third plaintiff) Laurence Rodny (first defendant/cross claimant)