Carr v Homersham

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.