(1) Orders that the amended Statement of Claim filed by the Plaintiff on 11 December 2019 be dismissed.
(2) Orders that probate in solemn form of the Will dated 26 April 2017 be granted to the Defendants.
(3) Orders that the matter be remitted to the Senior Deputy Registrar in Probate to attach a copy of the final orders, as made and entered, to the original grant of Probate and, thereafter, to return that original to the Defendants.
(4) Stands over the proceedings to 9:00 a.m. on 10 June 2021 for the determination of costs.
Catchwords:
SUCCESSION — Contested probate – Alleged lack of testamentary capacity - Lack of knowledge and approval - Suspicious circumstances - Whether deceased knew and approved the contents of the 2017 Will - Whether onus on the propounders of the 2017 Will has been discharged
SUCCESSION - FAMILY PROVISION - Alternative claim for family provision order under the Succession Act 2006 (NSW), Ch 3 by Plaintiff - Claim by adult grandchild of the deceased - Whether wholly or partly dependent upon deceased at any particular time - Whether factors warranting the making of the application - Lack of any contact with the Plaintiff for some years - Limited telephone contact but it stopped about 9 years before death of the deceased - Some provision made for Plaintiff in the Will - Whether adequate and proper provision not made in the Will of the deceased for the Plaintiff and, if not, the nature and quantum of the provision to be made for her - Claim for relief dismissed
[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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AGLC
Chisak v Presot [2021] NSWSC 597
Case
[2021] NSWSC 597
Decision Date
CaseChat Overview and Summary
The case of Chisak v Presot involved a dispute over the validity of a will and a claim for family provision under the Succession Act 2006 (NSW) brought by the deceased’s adult grandchild, the plaintiff. The defendants were the executors of the deceased's estate and sought to probate the will. The plaintiff contested the will on the basis that the deceased lacked testamentary capacity when it was executed and that she did not know and approve its contents. Additionally, the plaintiff sought a family provision order, arguing that the deceased had failed to make adequate provision for her.
The court was required to determine whether the deceased possessed the necessary testamentary capacity when executing the 2017 will and whether she knew and approved its contents. Furthermore, the court had to assess if the plaintiff's claim for a family provision order was valid, focusing on whether she was dependent on the deceased to any extent, the factors justifying the application, and whether the provision made in the will was adequate. The court also had to consider the nature and quantum of any provision that should be made for the plaintiff under the Succession Act.
The court held that the plaintiff had not discharged the onus of proving that the deceased lacked testamentary capacity or that she did not know and approve the contents of the will. The court found that the plaintiff's lack of contact with the deceased for several years, coupled with limited telephone contact, did not support her claim. Additionally, the court determined that the provision made for the plaintiff in the will was adequate, and thus dismissed the plaintiff's claim for a family provision order. Consequently, the court upheld the validity of the will and dismissed the plaintiff's claims in their entirety.