Rodny v Weisbord [2020] NSWCA 22

Court of Appeal Supreme Court New South Wales Medium Neutral Citation: Rodny v Weisbord [2020] NSWCA 22 Hearing dates: 19 and 20 August 2019 Decision date: 27 February 2020 Before: Meagher JA at [1] White JA at [99] McCallum JA at [150] Decision: (1) Appeal allowed.

(2) Set aside orders 1, 2, 3, 4, 5, 6 and 8 made on 11 February 2019 and entered on 12 February 2019.

(3) Order that a grant of probate in solemn form of the will of Rose Rodny dated 19 December 1997 be made to Laurence Rodny.

(4) Order that the costs of the appeal of the appellant and the respondents, assessed on the ordinary basis, be paid out of the estate of Rose Rodny.

(5) Direct that the parties attempt to agree on the order to be made dealing with order 7 made by the primary judge and further direct that in the absence of such agreement they exchange written submissions, in the case of each party not to exceed three pages, and provide those submissions to the associate to Meagher JA by 12 March 2020. The dispute in relation to the disposition of that order will then be dealt with on the papers. Catchwords: SUCCESSION – probate and administration – informal document – dispensing with requirements for execution of a will pursuant to Succession Act 2006 (NSW), s 8 – intention that document form a will – where no findings as to how intention formed – where primary judge found it more likely that deceased had not seen document propounded as will – where evidence did not permit a finding as to what might have caused deceased to believe she had executed a will – where evidence did not permit a finding that deceased intended that any particular document would operate as her will Legislation Cited: Succession Act 2006 (NSW), s 8 Wills Act 1997 (Vic), s 9 Cases Cited: Beaty v Beaty (1822) 1 Add 154; 162 ER 54 Bell v Crewes [2011] NSWSC 1159 Boensch v Pascoe [2019] HCA 49 Costa v The Public Trustee of NSW [2008] NSWCA 223 Deeks v Greenwood [2011] WASC 359 Estate of Laura Angius; Angius v Angius [2013] NSWSC 1895 Fast v Rockman [2013] VSC 18 Hatsatouris v Hatsatouris [2001] NSWCA 408 In the application of Kencalo (In the Estate of Ruth Buharoff) (Supreme Court (NSW), Powell J, 18 October 1991, unrep) In the Estate of Alan Arthur McInnes (Supreme Court (NSW), Powell J, 10 April 1992, unrep) In the Estate of Blakely, Deceased (1983) 32 SASR 473 In the Estate of Masters (decd); Hill v Plummer (1994) 33 NSWLR 446 In the Estate of Michailo Krawczuk deceased (1992) 168 LSJS 231 In the Estate of Vauk (1986) 41 SASR 342 In the Estate of Williams (1984) 36 SASR 423 IOOF Australia Trustees Ltd v Jamestown Hospital Inc (1993) 174 LSJS 263) Mitchell v Mitchell [2010] WASC 174 Oreski v Ikac [2008] WASCA 220 Polyak Estate; Amy v Permanent Trustee [1999] NSWSC 862 Re Application of Brown; Estate of Springfield (1991) 23 NSWLR 535 Sultanova v Bolgarow [2019] VSCA 245 Whyte v Pollok (1882) 7 App Cas 400 Category: Principal judgment Parties: Laurence Rodny (appellant) Jeannette Weisbord (first respondent) Joel Weisbord (second respondent) Alexander Weisbord (third respondent) Representation: Counsel: L Ellison SC (appellant) V Culkoff (respondents)