Burge v Burge

[2015] NSWCA 289

NSW Court of Appeal

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Interrogate

Catchwords

1. Wills
2. › Informal testamentary documents
3. › Dispensing power
4. › Whether deceased intended document to form will
5. › Professionally drafted will amended, signed and dated but not witnessed
6. › Significance of location of document separate from other testamentary documents
7. › Deceased's habit of signing and dating documents not intended to have legal effect
8. › Succession Act 2006 (NSW), s 8(2)(a)
1. Appeal
2. › Leave to appeal
3. › Grant of probate
4. › Estate valued in excess of $100,000
5. › Most of estate comprised overseas bank accounts
6. › Whether by taking out probate executrix accepted trusts in will including as to foreign property
7. › Supreme Court Act 1970 (NSW), s 101(2)(r)
1. Wills
2. › Informal testamentary documents
3. › Dispensing power
4. › Remedial purpose of legislation
5. › Whether remedial purpose requires that proponent of informal document succeed in every finely balanced case
6. › Succession Act 2006 (NSW), s 8

Quick Take

The signing and dating of a document of apparently testamentary character will ordinarily satisfy s 8(2)(a) of the Succession Act 2006 (NSW), but this presumption may be displaced by evidence that the deceased had a practice of signing and dating documents not intended to have legal effect, that the document was stored separately from other testamentary documents, and that the deceased was aware of the requirement for attesting witnesses. The remedial purpose of s 8 does not require that the proponent of an informal testamentary document succeed in every finely balanced case.