Chisak v Presot

Case [2021] NSWSC 597


Supreme Court


New South Wales

Medium Neutral Citation: Chisak v Presot [2021] NSWSC 597
Hearing dates: 23 – 25 March 2021 and 30 March 2021
Date of orders: 27 May 2021
Decision date: 27 May 2021
Jurisdiction:Equity
Before: Hallen J
Decision:

The Court:

(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

Legislation Cited:

Civil Liability Act 2002 (NSW)

Civil Procedure Act 2005 (NSW)

Evidence Act 1995 (NSW)

Succession Act 2006 (NSW)

Cases Cited:

Alexander v Jansson [2010] NSWCA 176

Amaca Pty Ltd v Novek [2009] NSWCA 50

Australian Securities and Investments Commission v Hellicar (2012) 247 CLR 345; [2012] HCA 17

Bayssari v Bazouni [2014] NSWSC 910

Blendell v Byrne & Ors; the Estate of Noeline Joan Blendell [2019] NSWSC 583

Bowditch v NSW Trustee & Guardian [2012] NSWSC 275

Bracher v Jones [2020] NSWSC 1024

Briginshaw v Briginshaw (1938) 60 CLR 336

Brown v Faggoter [1998] NSWCA 44

Carr v Homersham (2018) 97 NSWLR 328; [2018] NSWCA 65

Chapple v Wilcox (2014) 87 NSWLR 646; [2014] NSWCA 392

Churton v Christian (1988) 13 NSWLR 241

Coshott v Prentice (2014) 221 FCR 450; [2014] FCAFC 88

Croft v Sanders [2019] NSWCA 303

Diver v Neal [2009] NSWCA 54

Doulaveras v Daher (2009) 253 ALR 267; [2009] NSWCA 58

Evans v Levy [2011] NSWCA 125

Foley v Ellis [2008] NSWCA 288

Glynne v NSW Trustee and Guardian; Lindsay v NSW Trustee and Guardian [2011] NSWSC 535

Gorton v Parks (1989) 17…

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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.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

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Ratio Decidendi

Legal Principle Established

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