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Bracher v Jones

Bracher v Jones

Case [2020] NSWSC 1024 5 August 2020

Testamentary Capacity

Knowledge and Approval

Undue Influence

Succession Law

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Supreme Court

New South Wales

Medium Neutral Citation: Bracher v Jones [2020] NSWSC 1024
Hearing dates: 28 October 2019 to 1 November 2019, 13 December 2019, 6 May 2020
Decision date: 05 August 2020
Jurisdiction: Equity
Before: Robb J
Decision:
1. An order will be made for the revocation of the grant of probate of the deceased’s will dated 19 June 2013.
2. An order will be made for the grant of probate of the deceased’s will dated 28 June 2010 in solemn form.
3. The parties are directed to confer for the purpose of preparing short minutes of order to give effect to these reasons for judgment and for the determination of the issues considered but not decided.
4. The parties have leave to relist this matter for further consideration of the orders to be made by arrangement with the Associate to Robb J.

Catchwords:
SUCCESSION — Contested probate — Testamentary capacity — whether deceased was able to comprehend and appreciate the claims to which deceased ought to have given effect — where there is no reliable testimonial evidence concerning the circumstances in which the deceased made their will — where there is an extreme doubt as to the testamentary capacity of the deceased — where the will was made in a cloud of suspicion — where there was an absolute dissonance between the effect of the will and the long-term and continuing relationship between the deceased and the plaintiff — where, in the circumstances in which the will was made, the testator was not capable of withstanding the pressure imposed by others in order to evaluate the strength of the claims — where the deceased had mild cognitive impairment, real short-term memory deficits and was subject to continual mental and emotional stresses — deceased did not have testamentary capacity
SUCCESSION — Contested probate — Knowledge and approval — where the testator wrote out the draft will in her own hand — where, in those circumstances, a finding that the testator did not know and approve of the terms of the will in a relevant sense would not be justified
SUCCESSION — Contested probate — Undue influence —where, in the probate jurisdiction, undue influence requires something in the nature of coercion in causing the testator to make the will — where, in the actual circumstances, the testator was in fact vulnerable to having her will overborne by incessant demands — where the evidence suggests that the testator, during conferences with solicitors, appeared to emotionally withdraw from the conference — where constant importuning of an old and weakened person, with compromised testamentary capacity, results in the testator effectively abandoning free agency to escape the demands — where no reason can be found in the evidence that explains the abandonment of the testator’s long-term testamentary intention — where a conclusion of practical coercion should be reached

Legislation Cited:
Guardianship Act 1987 (NSW)
Succession Act 2006 (NSW)

Cases Cited:
Bailey v Bailey (1924) 34 CLR 558; [1924] HCA 21
Banks v…

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.

Continue reading Bracher v Jones

Details

AGLC: Bracher v Jones [2020] NSWSC 1024
Case: [2020] NSWSC 1024
Decision Date: 05 August 2020

CaseChat Overview and Summary

In the case of Bracher v Jones, the deceased, Bracher, left a will that was contested by the plaintiff, Jones, who argued that the will was not valid due to issues with the deceased's testamentary capacity and undue influence. The dispute reached the court which had to determine the validity of the will based on the circumstances surrounding its creation. The key legal issues involved whether Bracher had the necessary testamentary capacity to understand and approve the will, and whether undue influence was exerted on Bracher during the will's creation. The court examined the evidence of Bracher's cognitive state, her memory deficits, and the emotional and mental stresses she faced. It was found that Bracher's cognitive impairment and the pressures she was under made it unlikely that she could withstand the influence of others to make a sound testamentary decision. The court concluded that Bracher did not have the testamentary capacity to make a valid will and that undue influence was exerted, leading to the invalidity of the contested will.

The court's reasoning focused on the lack of reliable evidence regarding the circumstances in which the will was made, coupled with the extreme doubt about Bracher's testamentary capacity. The court noted that there was no evidence to support the will's terms, given the dissonance between the will's effect and Bracher's long-standing relationship with the plaintiff. It was held that Bracher was not capable of resisting the pressure imposed by others, and her cognitive and emotional state at the time of the will's creation was such that she could not exercise free agency. The court also dismissed the argument regarding knowledge and approval, finding that Bracher had written the draft will herself, which did not support a finding that she did not know and approve of the will's terms. The court found that the will was invalid due to the deceased's lack of testamentary capacity and the undue influence exerted upon her.

Orders