Dawson v Peters and 3 Ors - [2007] NSWSC 1329

CITATION: DAWSON v PETERS & 3 ORS [2007] NSWSC 1329

HEARING DATE(S): 06 and 07/11/2007

JUDGMENT DATE :
26 November 2007

JURISDICTION: EQUITY

JUDGMENT OF: Bryson AJ at 1

DECISION: (1) Dismiss Claim 1 in the Summons; (2) Refer the claim for probate of the Will dated 23 January 2002 to the Registrar to complete; (3) Reserve costs.

CATCHWORDS: PROBATE - informal will - WPA Act s 18A - alleged codicil written out in testator's hospital room by the person principally benefited and signed by testator in her presence - no attesting witness, no other person present - testator aged 88, extremely ill and died next day - extensive evidence of circumstances and medical condition - probate of codicil refused because not satisfied (1) testator knew and approved of contents of document (2) testamentary capacity.

LEGISLATION CITED: Wills Probate and Administration Act s.18A

CASES CITED: Bailey v Bailey (1924) 34 CLR 558
Banks v Goodfellow (1870) LR 5 QB 549
Briginshaw v Briginshaw (1938) 60 CLR 336
Nock v Austin (1918) 25 CLR 519
Plunkett v Bull (1915) 19 CLR 544
Timbury v Coffee (1941) 66 CLR 277
Trust Company of Australia Ltd v Daulizio [2003] VSC 358
Tyrrell v Painton [1894] P 151
Vernon v Watson (Estate Clarice Isabel Quigley Deceased) [2002] NSWSC 600

PARTIES: Frederick Brian Dawson - Plaintiff
Joan Marie Peters and Gwen Cameron - First and Second Defendants
Narelle Godbee - Third Defendant

FILE NUMBER(S): SC 102918/2006

COUNSEL: M.P. Cleary - Pltf
R. Reitano - 1st & 2nd Dft
M. Lawson - 3rd Dft

SOLICITORS: Higgins & Dawson - Plaintiff
Bradfield Mills - 1st & 2nd Defendants
Atkinson Vinden Heazlewoods - 3rd Dft

IN THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION
PROBATE LIST

BRYSON AJ

MONDAY 26 NOVEMBER 2007

& 3 ORS

THE ESTATE OF WILFRED NICHOLLS

JUDGMENT

1 BRYSON AJ: Wilfred Nicholls late of the 36 Fourth Avenue, Toukley New South Wales, retired, died at the Wyong District Hospital on 27 June 2005. He was a widower: his late wife Alma died on (or about) 21 September 1987. He had been a patient there from 14 June, presenting with chronic airways limitation. His condition is also referred to as pneumonia and as infective exacerbation of chronic obstructive pulmonary disease. He had had several previous hospitalisations for obstructive pulmonary disease, and was a smoker. The causes of death certified were:

2 The testator made a will dated 23 January 2002 regularly executed and attested, and appointed the plaintiff Mr Frederick Brian Dawson, solicitor, who practises at Toukley, his executor and trustee. The will shows on its face that it was professionally drafted. The will directed Mr Dawson to convert all property into money and to pay the net moneys in equal shares to seven persons. The will referred to each of Mrs Joan Peters and Mrs Gwen Cameron as "my niece”, and they are daughters of the late…

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

Case: [2007] NSWSC 1329
Decision Date: 26 November 2007

CaseChat Overview and Summary

In the matter of Dawson versus Peters and others, the central issue was the validity of a codicil to a deceased's will. The court was tasked with determining whether the codicil, allegedly written by the deceased in her hospital room, met the legal requirements for being considered part of the will. The deceased, aged 88 and terminally ill, was said to have written out the codicil in the presence of one of the primary beneficiaries, who then signed it. However, the codicil lacked an attesting witness and no other individual was present during its execution. The deceased passed away the following day.

The court had to consider two main legal questions: first, whether the deceased knew and approved of the contents of the document, and second, whether the deceased had the necessary testamentary capacity at the time of signing. The evidence presented included detailed accounts of the deceased's medical condition, her state of mind, and the circumstances surrounding the execution of the codicil. The court meticulously evaluated the evidence to ascertain whether the statutory requirements under the Wills Act had been satisfied.

After thorough examination, the court concluded that the criteria for probate of the codicil were not met. The court was not satisfied that the deceased had both knowledge and approval of the document's contents. Additionally, there was insufficient evidence to establish that the deceased had testamentary capacity at the time of signing. Consequently, the court refused to grant probate for the codicil.

The final orders of the court were that the codicil in question would not be included in the administration of the deceased's estate, and probate was denied solely in respect of the codicil. The rest of the will remained valid and enforceable.

Orders