Carr v Homersham

Case [2018] NSWCA 65


Court of Appeal


Supreme Court


New South Wales

  • Summary available
  • Amendment notes
Medium Neutral Citation: Carr v Homersham [2018] NSWCA 65
Hearing dates: 14 February 2018
Decision date: 03 April 2018
Before: Basten JA at [1];
Macfarlan JA at [52];
Leeming JA at [128]
Decision:

(1)   Allow the appeal.
(2)   Set aside the orders made at first instance on 13 June 2017 and any further orders subsequently made to give effect to the primary judge’s reasons for judgment of that date.
(3)   Order that probate in solemn form be granted to Ms Carr of the will of the late Beryl Lee Hordern dated 5 April 2004.
(4)   Order that the matter be referred to the Registrar of the Equity Division to complete the grant.
(5)   Dismiss the respondent’s Amended Statement of Claim.
(6)   Order the respondent to pay the appellant’s costs of the appeal and of the proceedings at first instance.
(7) Grant to the respondent a certificate under the Suitors’ Fund Act 1951 (NSW).

Catchwords: SUCCESSION – testamentary capacity – the deceased excluded her niece from her will as a result of a false belief concerning the niece – whether the deceased’s holding of the false belief indicated that the deceased lacked testamentary capacity – test in Banks v Goodfellow (1870) LR 5 QB 549 considered – meaning and language of “insane delusion” considered
Legislation Cited: Mental Competency Act 2005 (UK)
Probate and Administration Act 1898 (NSW), s 72
Cases Cited: Banks v Goodfellow (1870) LR 5 QB 549
Boughton v Knight (1873) LR 3 P & D 64
Bull v Fulton (1942) 66 CLR 295; [1942] HCA 13
d’Apice v Gutkovich – Estate of Abraham (No 2) [2010] NSWSC 1333
Estate of Beryl Lee Hordern (Deceased); Homersham v Carr [2017] NSWSC 753
Harwood v Baker (1840) 3 Moo PC 282; 13 ER 117
James v James [2018] EWHC 43 (Ch)
Perpetual Trustee v Baker [1999] NSWCA 244
Re Estate of Griffith (dec’d); Easter v Griffith (1995) 217 ALR 284
Re the Estate of Paul Francis Hodges Deceased; Shorter v Hodges (1988) 14 NSWLR 698
Timbury v Coffee (1941) 66 CLR 277; [1941] HCA 22
Tobin v Ezekiel (2012) 83 NSWLR 757; [2012] NSWCA 285
Wechsler v Du Maurier [2002] NSWCA 13
Worth v Clasohm (1952) 86 CLR 439; [1952] HCA 67
Category:Principal judgment
Parties: Cynthia Marie Carr (Appellant)
Paula Grace Homersham as Attorney for Ann Richardson (Respondent)
Representation:

Counsel:
D H Murr SC / M Fraser (Appellant)
D M Flaherty (Respondent)

  Solicitors:
Walker Taylor Edwards & Smith (Appellant)
C E Chapman & Co Lawyers (Respondent)
File Number(s): CA 2017/196096
 Decision under appeal 
Court or tribunal:
Supreme Court
Jurisdiction:
Equity
Citation:
Estate of Beryl Lee Hordern (Deceased); Homersham v Carr [2017] NSWSC 753
Date of Decision:
13 June 2017
Before:
Robb J
File Number(s):
SC 2016/32359

HEADNOTE

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

Ms Beryl Hordern died in 2014. In 2001 she had executed a will leaving…

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AGLC
Carr v Homersham [2018] NSWCA 65
Case
[2018] NSWCA 65
Decision Date

CaseChat Overview and Summary

The appeal in *Carr v Homersham* concerned the testamentary capacity of the deceased, Beryl Lee Hordern. The appellant, Ms Carr, sought to admit the deceased's will dated 5 April 2004 to probate, while the respondent, the deceased's niece, challenged its validity. The core of the dispute was whether the deceased's exclusion of her niece from her will, purportedly due to a false belief about the niece, indicated a lack of testamentary capacity. The matter was heard in the Court of Appeal of New South Wales, with Basten, Macfarlan and Leeming JJA presiding.

The legal issues before the Court of Appeal were whether the primary judge erred in finding that the deceased lacked testamentary capacity and, consequently, whether the will of 5 April 2004 was invalid. This involved a consideration of the test for testamentary capacity as established in *Banks v Goodfellow* (1870) LR 5 QB 549, and specifically, the meaning and application of the concept of an "insane delusion" in the context of a testator's beliefs.

The Court of Appeal allowed the appeal, finding that the primary judge had erred in concluding that the deceased lacked testamentary capacity. The Court applied the principles from *Banks v Goodfellow*, which requires a testator to understand the nature of their will and their property, and to be able to comprehend and appreciate the claims of those who might expect to benefit from their estate. The Court reasoned that while the deceased held a false belief concerning her niece, this belief did not amount to an "insane delusion" that incapacitated her from making a valid will. The Court distinguished between a mistaken belief, however unreasonable, and a delusion that is so irrational and fixed that it prevents the testator from acting rationally in relation to their testamentary dispositions.

Consequently, the Court of Appeal set aside the orders made at first instance and ordered that probate in solemn form be granted to Ms Carr of the will dated 5 April 2004. The respondent's Amended Statement of Claim was dismissed, and the respondent was ordered to pay the appellant's costs of the appeal and the proceedings at first instance, with a certificate granted under the Suitors’ Fund Act 1951 (NSW) for the respondent.

Orders

Orders of the court

(1) Allow the appeal.

(2) Set aside the orders made at first instance on 13 June 2017 and any further orders subsequently made to give effect to the primary judge’s reasons for judgment of that date.

(3) Order that probate in solemn form be granted to Ms Carr of the will of the late Beryl Lee Hordern dated 5 April 2004.

(4) Order that the matter be referred to the Registrar of the Equity Division to complete the grant.

(5) Dismiss the respondent’s Amended Statement of Claim.

(6) Order the respondent to pay the appellant’s costs of the appeal and of the proceedings at first instance.

(7) Grant to the respondent a certificate under the Suitors’ Fund Act 1951 (NSW).

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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