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Anderson v Yongpairojwong

Anderson v Yongpairojwong

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Supreme Court

New South Wales

Medium Neutral Citation: Anderson v Yongpairojwong [2023] NSWSC 1359
Hearing dates: 23, 24, 25, 26, 27, 30 October 2023
Date of orders: 10 November 2023
Decision date: 10 November 2023
Jurisdiction: Equity
Before: Griffiths AJ
Decision:
(1) The further amended statement of claim filed on 17 June 2022 is dismissed.
(2) The first cross-claim filed on 25 February 2022 is allowed.
(3) Under s 42(4) of the Probate and Administration Act 1898 (NSW) any partial or total failure to comply with the requirements of ss 42(2) and (3) shall not bar the granting of probate.
(4) Probate of the will of the late Amonrat Chanta dated 24 June 2020 be granted in solemn form to Kijchai Yongpairojwong.
(5) Unless any party objects within 14 days hereof, the following orders apply to costs:
(a) for the period up until 3 March 2023, the estate of the late Amonrat Chanta bear the costs of the parties, excluding the costs of the two expert medical reports;
(b) the plaintiff pay the second defendant’s costs thereafter, including the costs of the family provision claim;
(c) the second cross-defendant pay the costs of the cross-claimant with respect to the cross-claim filed on 25 February 2022.

Catchwords:
SUCCESSION – Contested probate – testamentary capacity – where testatrix was undergoing treatment for metastatic cancer – whether evidence revealed not of sound mind, memory or understanding and had sufficient testamentary capacity despite effect of treatments and physical condition
SUCCESSION – Contested probate – knowledge and approval of testatrix– whether any evidence of suspicious circumstances surrounding execution of the will
SUCCESSION – Conflict of laws – where testatrix executed will in Australia and then executed a will in Thailand three years later – where some differences between the two wills but deal substantially with the same property – where testatrix domiciled in Australia and Thai will is a valid testamentary instrument under NSW law – where in any event Thai will accords with formal validity requirements of Thai law
SUCCESSION – Family provision claim – extension of time required – where evidence of plaintiff seeking family provision order did not divulge full extent of assets

Legislation Cited:
Civil Procedure Act 2005 (NSW) s 98
Probate and Administration Act 1898 (NSW) ss 40, 42
Succession Act 2006 (NSW) ss 6, 48, 58, 59, 60, 78, 99
Supreme Court Rules 1970 (NSW) Pt 78 rr 3, 6
Uniform Civil Procedure Rules 2005 (NSW) rr 31.19, 42.1

Cases Cited:
Banks v Goodfellow (1870) LR 5 QB 549
Barry v Butlin (1838) 12 ER 1089
Blendell v Blendell; Blendell v Blendell [2020] NSWCA 154
Boughton v Knight (1873) LR 3 P&D 64
Bull v Fulton (1942) 66 CLR 295; [1942] HCA 13
Carr v Homersham [2018] NSWCA 65
Collings v Vakas [2006] NSWSC 393
Croft v Sanders [2019] NSWCA 303
d’Apice v Gutkovich - Estate of Abraham (No. 2) [2010] NSWSC 1333
Haertsch v Whiteway (No 2) [2020] NSWCA 287
In Re Male [1934] VLR 318
Kerr…

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: [2023] NSWSC 1359
Decision Date: 10 November 2023

CaseChat Overview and Summary

The case of Anderson v Yongpairojwong involved a dispute over the validity of a will and the entitlement to the estate of the deceased, Suthida Yongpairojwong. The will, which left her estate to her daughter and son-in-law, was contested by her other son, the plaintiff. The court was required to determine whether the deceased had the necessary testamentary capacity when she executed the will, given her ongoing treatment for metastatic cancer. Additionally, the court had to assess whether there was any evidence of suspicious circumstances surrounding the execution of the will, and whether the will executed in Thailand was valid under Australian law.

The court considered the evidence of medical professionals who opined that the deceased was of sound mind, memory and understanding at the time of executing the will, despite the effects of her cancer treatment and physical condition. The court held that the evidence did not establish that the deceased lacked testamentary capacity. In regard to suspicious circumstances, the court found no evidence that would suggest otherwise. The court also ruled that the Thai will was valid under both Australian and Thai law.

The court further addressed the plaintiff's family provision claim, which required an extension of time to disclose the full extent of the deceased's assets. The court considered the plaintiff's evidence and determined that an extension of time was warranted, as the plaintiff had not been aware of the full extent of the assets when the claim was initially filed.

The final orders of the court included the granting of probate to the will, dismissing the plaintiff's challenge to its validity, and granting an extension of time for the plaintiff's family provision claim.

Orders