Anderson v Yongpairojwong - [2024] NSWCA 220

Court of Appeal

Supreme Court

New South Wales

Summary available

Medium Neutral Citation: Anderson v Yongpairojwong [2024] NSWCA 220
Hearing dates: 24 June 2024
Date of orders: 12 September 2024
Decision date: 12 September 2024
Before: Bell CJ at [1];
Leeming JA at [180];
Mitchelmore JA at [186]
Decision:
Appeal dismissed with costs.

Catchwords:
SUCCESSION – Contested grant of Thai will – Executed in circumstances where testatrix ill with cancer – Primary judge held testator had capacity – Relevance of absence of medical records suggesting a lack of capacity – Primary judge taking into account universe of evidence – Suspicious circumstances – Whether established – Desirability of pleading or particularising suspicious circumstances

Legislation Cited:
Civil Procedure Act 2005 (NSW) s 56
Succession Act 2006 (NSW) s 59

Cases Cited:
Barry v Butlin [1838] 12 ER 1089
Bull v Fulton (1942) 66 CLR 295; [1942] HCA 13
Carr v Homersham (2018) 97 NSWLR 328; [2018] NSWCA 65
Craig-Bridges v NSW Trustee and Guardian [2017] NSWCA 197
Croft v Sanders [2019] NSWCA 303
Dedakis v Deligiannis; The estate of Rebecca Deligiannis (also known as Rebeka Deligiannis) [2024] NSWSC 1018
Fox v Percy (2003) 214 CLR 118; [2003] HCA 22
J and E Vella Pty Ltd v Hobson [2023] NSWCA 234
Kerr v Badran [2004] NSWSC 735
Lee v Lee (2019) 266 CLR 129; [2019] HCA 28
Lim v Lim [2023] NSWCA 84
Mekhail v Hana [2019] NSWCA 197
Nicholson v Knaggs [2009] VSC 64
Re Estate of Griffith (dec’d); Easter v Griffith (1995) 217 ALR 284
Veall v Veall (2015) 46 VR 123; [2015] VSCA 60
Warren v Coombes (1979) 142 CLR 531; [1979] HCA 9
Wild v Meduri (No 2) [2023] NSWSC 669
Zorbas v Sidiropoulous (No 2) [2009] NSWCA 197

Category: Principal judgment
Parties: Palisa Anderson (Appellant)
Kijchai Yongpairojwong (First Respondent)
Kulphat Laoyont (Second Respondent)
Representation:
Counsel:

L Ellison SC with A Maroya (Appellant)
S Chapple SC with D Yazdani (Respondents)

Solicitors:
Mills Oakley (Appellant)
Swaab (Respondents)

File Number(s): 2023/445224
Publication restriction: N/A
Decision under appeal

Court or tribunal:

Supreme Court of New South Wales

Jurisdiction:

Equity

Citation:

[2023] NSWSC 1359

Date of Decision:

10 November 2023

Before:

Griffiths AJ

File Number(s):

2021/356682

HEADNOTE

[This headnote is not to be read as part of the judgment]

Amonrat Chanta (Amy) was the matriarch of a chain of restaurants operating under the “Chat Thai” brand. Amy died on 10 March 2021, and was survived by her son, Kulphat Laoyont (Pat or the Second Respondent), and daughter, Palisa Anderson (Palisa or the Appellant). Amy executed two wills: one in New South Wales in 2017 (the NSW Will), and the other in Thailand on 24 June 2020 (the Thai Will). The NSW Will provided, inter alia, that Pat and Palisa would receive a roughly even split of Amy’s shares in the companies used to operate her business (the CT Group) and also share the residue of…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2024] NSWCA 220
Decision Date: 12 September 2024

CaseChat Overview and Summary

The appeal concerned a contested grant of probate for a Thai will. The appellant, Anderson, sought to challenge the will of the deceased, Yongpairojwong, who had executed the will while suffering from cancer. The primary judge had found that the testatrix possessed the necessary testamentary capacity at the time of executing the will.

The central legal issues before the Court of Appeal were whether the primary judge erred in finding that the testatrix had testamentary capacity, and whether the circumstances surrounding the execution of the will were sufficiently suspicious to warrant a different outcome. The appellant also raised questions about the desirability of pleading or particularising suspicious circumstances in such cases.

The Court of Appeal affirmed the primary judge's decision, holding that the absence of medical records specifically suggesting a lack of capacity did not preclude a finding of capacity. The primary judge had properly considered the entire universe of evidence presented. The court found that the circumstances surrounding the will's execution were not established as suspicious in a manner that would invalidate the will. The court also noted that while pleading suspicious circumstances is desirable, its absence did not automatically lead to a different conclusion if the evidence otherwise supported the will's validity.

The appeal was dismissed with costs.

Orders

Orders of the court

Appeal dismissed with costs.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

Medium Neutral Citation:	Anderson v Yongpairojwong [2024] NSWCA 220
Hearing dates:	24 June 2024
Date of orders:	12 September 2024
Decision date:	12 September 2024
Before:	Bell CJ at [1]; Leeming JA at [180]; Mitchelmore JA at [186]
Decision:	Appeal dismissed with costs.
Catchwords:	SUCCESSION – Contested grant of Thai will – Executed in circumstances where testatrix ill with cancer – Primary judge held testator had capacity – Relevance of absence of medical records suggesting a lack of capacity – Primary judge taking into account universe of evidence – Suspicious circumstances – Whether established – Desirability of pleading or particularising suspicious circumstances
Legislation Cited:	Civil Procedure Act 2005 (NSW) s 56 Succession Act 2006 (NSW) s 59
Cases Cited:	Barry v Butlin [1838] 12 ER 1089 Bull v Fulton (1942) 66 CLR 295; [1942] HCA 13 Carr v Homersham (2018) 97 NSWLR 328; [2018] NSWCA 65 Craig-Bridges v NSW Trustee and Guardian [2017] NSWCA 197 Croft v Sanders [2019] NSWCA 303 Dedakis v Deligiannis; The estate of Rebecca Deligiannis (also known as Rebeka Deligiannis) [2024] NSWSC 1018 Fox v Percy (2003) 214 CLR 118; [2003] HCA 22 J and E Vella Pty Ltd v Hobson [2023] NSWCA 234 Kerr v Badran [2004] NSWSC 735 Lee v Lee (2019) 266 CLR 129; [2019] HCA 28 Lim v Lim [2023] NSWCA 84 Mekhail v Hana [2019] NSWCA 197 Nicholson v Knaggs [2009] VSC 64 Re Estate of Griffith (dec’d); Easter v Griffith (1995) 217 ALR 284 Veall v Veall (2015) 46 VR 123; [2015] VSCA 60 Warren v Coombes (1979) 142 CLR 531; [1979] HCA 9 Wild v Meduri (No 2) [2023] NSWSC 669 Zorbas v Sidiropoulous (No 2) [2009] NSWCA 197
Category:	Principal judgment
Parties:	Palisa Anderson (Appellant) Kijchai Yongpairojwong (First Respondent) Kulphat Laoyont (Second Respondent)
Representation:	Counsel: L Ellison SC with A Maroya (Appellant) S Chapple SC with D Yazdani (Respondents) Solicitors: Mills Oakley (Appellant) Swaab (Respondents)
File Number(s):	2023/445224
Publication restriction:	N/A
Decision under appeal	Court or tribunal: Supreme Court of New South Wales Jurisdiction: Equity Citation: [2023] NSWSC 1359 Date of Decision: 10 November 2023 Before: Griffiths AJ File Number(s): 2021/356682