Pethers v Pethers

[2012] NSWSC 896

Supreme Court

New South Wales

Medium Neutral Citation:	Pethers v Pethers; Estate of Pethers [2012] NSWSC 896
Hearing dates:	Monday, 30 July 2012
Decision date:	30 July 2012
Jurisdiction:	Equity Division - Probate List
Before:	White J
Decision:	Refer to para [11] of judgment.
Catchwords:	WILLS, PROBATE AND ADMINISTRATION - wills - construction of will - whether deceased intended informal document to form will - intention of deceased clear from terms of informal document and accompanying correspondence - Succession Act 2006 (NSW), s 8
Legislation Cited:	Succession Act 2006
Category:	Principal judgment
Parties:	Gregory William Pethers (Plaintiff) Hannah Nynke Pethers (Defendant)
Representation:	Counsel: M Gunning (Plaintiff) Solicitors: Parker Kissane & Gibson (Plaintiff) Thomson Playford Cutlers (Defendant)
File Number(s):	2011/312162

Judgment

1. HIS HONOUR: On 22 December 2011 the plaintiff filed a summons seeking a grant of probate to him of what was described as a will dated 5 January 2011 of Kenneth Alfred Pethers, late of The Glen via Woodenbong. Today the plaintiff seeks a declaration under s 8 of the Succession Act 2006 that the document dated 5 January 2011 was intended by the deceased to form his will. The plaintiff also seeks a grant of letters of administration with the will annexed. The deceased died between 28 February and 1 March 2011.

1. The document propounded as a testamentary instrument was written by the deceased on cardboard on the back of what appears to be part of a container for an animal vaccine. The deceased was a farmer. The document is in the handwriting of the deceased and signed by him. It reads:

"Only will and last testament of the said Kenneth Alfred Pethers born 17 MAR 58. I herewith leave and bequeath my entire estate and effects to my elder brother Gregory, to be dealt with as he sees fit. And at a later date for some such provision to be made by him for my two daughters not domicil [sic] in Australia. Prepared and signed by the above this 5th day of January 2011-Ken Pethers."

1. The deceased's signature appears against this writing. The deceased's signature to the document was not attested by any witness.

1. Following the deceased's death there was found beside this document an envelope addressed to the plaintiff enclosing a letter written by the deceased to him also dated 5 January 2011. That letter includes the following statements:

"Dear Greg,

In the event of my passing please find enclosed my only will. ... I trust the will to be valid ..."

1. There is no appearance by any party to oppose the application. It is clear from the terms of the document itself and the accompanying correspondence that the deceased intended the document to form his will and I will make a declaration pursuant to s 8 of the Succession Act 2006 that the deceased so intended.

1. On 29 September 2011 a caveat against a grant of probate or reseal in respect of the estate was lodged by Hannah Nynke Pethers and Jo Ellen Pethers who are daughters of the deceased. The caveat required that there be no grant until they had had the opportunity to be heard on the question of whether a declaration should be made under s 8 of the Succession Act in respect of the document. The notice was lodged on their behalf by a firm of solicitors, Thomsons Lawyers. A notice pursuant to Pt 78 r 34E of the Supreme Court Rules was served on them at the address of their solicitor, Thomsons Lawyers, whom I am satisfied had authority to accept service on their behalf.

1. On 16 March 2012 a notice of appearance was filed for Hannah Pethers who became a defendant to the proceedings. She was represented by a solicitor, Mr Eric Butler.

1. On 19 July 2012 he filed a notice of ceasing to act. He specified as the last address of the plaintiff known to him an address in Beach Haven, New Zealand.

1. The defendant does not have an address for service in this State. This is irregular, but I am satisfied that notice that the application would be brought on for hearing today has been served on the defendant at the address in New Zealand specified. It also appears that notice of today's hearing has been given to her by email correspondence. As I have said, there has been no appearance by any other party on today's application.

1. It is clear that the deceased intended the document to form his will.

1. I make the following declaration and orders:

1. Declare that the Court is satisfied that Kenneth Alfred Pethers, late of The Glen via Woodenbong (the deceased) intended the document dated 5 June 2011 which is exhibit A to form his will.

2. Order that letters of administration with the said will annexed be granted to the plaintiff.

3. Remit the proceedings to the registrar to complete the grant.

4. Order that the costs of the proceedings be paid on the indemnity basis to the plaintiff out of the estate.