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
[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…
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
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).