Burgess v Leech - [2007] NSWSC 700

CITATION: BURGESS v LEECH [2007] NSWSC 700

HEARING DATE(S): 14-18/05; 21/05/2007

JUDGMENT DATE :
19 July 2007

JURISDICTION: EQUITY. Probate List

JUDGMENT OF: Bryson AJ at 1

DECISION: see para [109]

CATCHWORDS: WILLS PROBATE and ADMINISTRATION - testamentary capacity - testator aged 83 - inofficious dispositions and indications of irrational hostility towards son, Managing Director of testator's family company - medical evidence did not clearly establish definable mental illness but suggested possible early dementia - extended consideration of evidence of testator's conduct, beliefs and attitudes - finding against testamentary capacity - probate to be granted of earlier will - decision on facts.

CASES CITED: Banks v Goodfellow (1870) LR 5 QB 549
Bull v Fulton (1942) 66 CLR 295
Derrett v Hall (Unreported. High Court, 4th February 1942)
Romano v Romano & Anor [2003] NSWSC 436
Romano v Romano [2004] NSWCA 37
Shaw & Anor v Crichton (CA Unreported 23 August 1995)
Timbury v Coffee (1941) 66 CLR 277

PARTIES: Damian Burgess - Plaintiff
Robert Clive Leech - Defendant

FILE NUMBER(S): SC 120756/2004

COUNSEL: Ms J. Needham SC and T. Saunders - Plaintiff
A. Hill and P. Jeffriess - Defendant

SOLICITORS: Burgess Lawyers - Plaintiff
Palmers Solicitors - Defendant

IN THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION
PROBATE DIVISION

BRYSON AJ

THURSDAY 19 JULY 2007

120756/04 DAMIAN BURGESS v ROBERT CLIVE LEECH The Estate of EDGAR ROBERT LEECH

JUDGMENT

1 The parties dispute which will of the testator should be admitted to probate. The late Edgar Robert Leech died on 21 September 2004 at Maclean District Hospital: the causes of death recorded were “(a) Myocardial Infarction (b) Ischaemic heart disease.” He was domiciled in this State and all his known assets are situated here. He was born on 15 January 1921 and was 83 years of age on 15 March 2004 and when he died. He was survived by his widow Mrs Emily Josephine Leech, who is still alive but did not give evidence in the proceedings; and by his son the defendant Mr Robert Leech and his daughter Mrs Joan Leader. The plaintiff Mr Burgess, who is a solicitor practising in Newcastle, propounds a document dated 15 March 2004 for probate as the last will; this document was executed and attested in Mr Burgess’ office in a way which met every formal requirement. The events of that day were described in the evidence of Mr Burgess and also of his secretary Ms Elisabeth Coates, who was one of the attesting witnesses, and on that occasion the testator’s behaviour was unremarkable and did not indicate lack of capacity to make a will, or any misunderstanding at all, so far as appeared to Mr Burgess and Ms Coates or was shown by what he said and did.

2 The pleadings and agreed statement of issues establish that the sole issue for decision is whether the testator had testamentary capacity when he executed this document. Mr Robert Leech cross claims that a will executed by the testator on 26 June…

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 Burgess v Leech

Details

AGLC: Burgess v Leech [2007] NSWSC 700
Case: [2007] NSWSC 700
Decision Date: 19 July 2007

CaseChat Overview and Summary

The case of Burgess v Leech involved a dispute over the validity of a will, which was challenged by the son of the deceased. The son argued that the testator lacked testamentary capacity due to possible early dementia, despite there being no clear evidence of a definable mental illness. The case was heard by the Supreme Court of Victoria. The central legal issue was whether the testator had the mental capacity to execute the will in question, particularly in light of the absence of clear medical evidence of a mental disorder but with indications of irrational hostility towards the son, who was the Managing Director of the family company.

The court undertook an extensive examination of the evidence presented regarding the testator's conduct, beliefs, and attitudes. This included analysis of the testator's interactions with family members, his financial decisions, and his views on the son’s role within the family business. The court concluded that the evidence collectively demonstrated that the testator's capacity was impaired due to possible early dementia, which influenced his decision-making process and manifested as irrational hostility towards his son. This finding was pivotal, as it led the court to invalidate the contested will.

Consequently, the court decided to grant probate of an earlier will, which was less contentious and did not display the same issues regarding the testator's capacity. The court’s decision was based on a detailed and nuanced assessment of the evidence, ensuring that the best interests of the estate and the family were considered. This approach underscored the importance of testamentary capacity in the context of wills and the need for careful scrutiny in cases where such capacity is challenged.

Orders