Chalik v Chalik

The appeal concerned a challenge to findings of fact and credit made by the primary judge in proceedings relating to the deceased's testamentary capacity and the validity of a 2013 Will. The appellant, who was unrepresented, sought to overturn the primary judge's decision that the deceased lacked testamentary capacity at the time of executing the 2013 Will, which meant probate was not granted in respect of that document. The appeal also involved a review of the costs order made by the primary judge.

The court was required to determine whether the primary judge erred in finding that the deceased lacked the necessary testamentary capacity to make the 2013 Will, applying the principles established in *Banks v Goodfellow*. This involved considering the significance of clinical notes recording cognitive defects both before and after the will's execution, and the circumstances surrounding its witnessing by a solicitor, including the testatrix's apparent lack of awareness regarding her attendance at the solicitor's office. Furthermore, the court had to assess whether the primary judge's costs order, which was revisited by a different judge following the primary judge's retirement, was vitiated by error or otherwise miscarried, particularly in light of a *Calderbank* offer and a formal offer of compromise that had been made prior to trial.

The court found no error in the primary judge's determination regarding testamentary capacity, upholding the conclusion that the deceased did not possess the requisite mental capacity to understand the nature and effect of the 2013 Will. The clinical evidence, coupled with the circumstances of the will's execution, supported this finding. Regarding costs, the court allowed the cross-appeal, finding that the primary judge's discretion had miscarried. Despite the respondent's rejection of reasonable settlement offers, the primary judge had awarded less than one quarter of the respondent's costs, and the court determined that the notional "buffer" referred to by the primary judge did not justify this outcome.

The appeal was dismissed with costs. Leave to cross-appeal was granted, and the cross-appeal was allowed with costs. The order of the primary judge fixing the plaintiff's costs payable to the first defendant at $40,000 was varied to $130,000.