Dellios v Dellios - [2012] NSWSC 868

Supreme Court

New South Wales

Medium Neutral Citation: Dellios v Dellios [2012] NSWSC 868
Hearing dates: 18-20 July 2012
Decision date: 20 July 2012
Before: White J
Decision:
Refer to paras [95], [97] and [102] of judgment.

Catchwords:
WILLS, PROBATE AND ADMINISTRATION - wills - testamentary capacity - whether deceased lacked testamentary capacity at time of making will - consideration of deceased's history of mental illness - where deceased suffered schizophrenia - whether deceased understood nature of act of making a will and its effect - deceased's failure to comprehend and appreciate claims to which she ought to give effect - onus remains with person propounding will to establish deceased had testamentary capacity - held onus not discharged

WILLS, PROBATE AND ADMINISTRATION - wills - construction of will - duties of solicitor - unsatisfactory way in which instructions for will were obtained - will prepared prior to having obtained instructions from deceased - will instructions provided by beneficiary of will - solicitor asked leading question of the deceased, translated to Macedonian by family members - no knowledge whether questions were accurately translated to deceased and deceased's answers accurately conveyed - undesirable that confirmation of will instructions obtained in presence of family members
WILLS, PROBATE AND ADMINISTRATION - letters of administration - appointment of administrator - whether plaintiff would be fit and proper person to be appointed as administrator - majority of those entitled on intestacy seek appointment of defendant as executor
Legislation Cited: Family Provision Act 1982
Probate and Administration Act 1898
Cases Cited: Pates v Craig and Anor; In the Estate of Cole (Supreme Court of New South Wales, Santow J, 28 August 1995, unreported BC9505250)
Petrovski v Nasev (No. 2); The Estate of Janakievska [2011] NSWSC 1275
Banks v Goodfellow (1870) LR 5 QB 549
Texts Cited: Hutley's Australian Will Precedents, 7th ed, 2009 LexisNexis Butterworths
Category: Principal judgment
Parties: Chris Dellios (Plaintiff)
John Dellios (Defendant)
Representation: Counsel:
L Ellison SC (Plaintiff)
J Needham SC with A Lakeman (Defendant)
Solicitors:
Roberts Mann Solicitors (Plaintiff)
Bilbie Dan (Defendant)

File Number(s): 2009/289795

Judgment

HIS HONOUR: These proceedings concern the estate of Paula Dellios who died on 8 May 2008 aged somewhere between 80 and 84. She was born in Macedonia. In these reasons I will call the relevant persons by their first name meaning no disrespect, but to assist with an understanding of the reasons.

The plaintiff, Chris Dellios, was Paula's brother. He seeks a grant of probate of a will made by her on 6 February 2006. Under that will he would inherit the whole of her estate. The defendant, John Dellios, is a nephew of Paula's. He contends that she lacked testamentary capacity to make the will of 6 February 2006. He seeks a grant of letters of administration on the basis that Paula died intestate.

Paula made an earlier will on 24 January 2006. Probate is not sought on that document. It is common ground that if Paula lacked capacity to make the will of 6 February…

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.

Continue reading Dellios v Dellios

Details

AGLC: Dellios v Dellios [2012] NSWSC 868
Case: [2012] NSWSC 868
Decision Date: 20 July 2012

CaseChat Overview and Summary

In the case of Dellios v Dellios, the court was tasked with determining the validity of a will in light of the deceased's mental health history and the process by which the will was created. The deceased, who suffered from schizophrenia, made a will leaving the majority of her estate to her daughter. The deceased's son contested the will, asserting that his mother lacked the testamentary capacity to make it. The court was required to decide whether the deceased understood the nature of the act of making a will and its effects, as well as whether the process by which the will was created was appropriate and adhered to proper legal standards.

The court first examined the deceased's testamentary capacity. It noted the deceased's history of mental illness and her failure to comprehend and appreciate the claims to which she ought to give effect. The court emphasised that the onus remains with the person propounding the will to establish the deceased had testamentary capacity, and found that this onus had not been discharged. The court also considered the process by which the will was created, noting that the will was prepared prior to obtaining instructions from the deceased and that the instructions were provided by the beneficiary of the will. Additionally, the solicitor had asked leading questions to the deceased, which were translated to Macedonian by family members, raising concerns about the accuracy of the communication. The court found this process to be unsatisfactory and concluded that it was undesirable that confirmation of will instructions be obtained in the presence of family members.

Based on the findings regarding the deceased's lack of testamentary capacity and the unsatisfactory process by which the will was created, the court declared the will invalid. The court also considered the fitness of the plaintiff to be appointed as administrator of the deceased's estate, given the majority of those entitled on intestacy sought the appointment of the defendant. The court ultimately determined that the plaintiff would be a fit and proper person to be appointed as administrator. The court issued letters of administration to the plaintiff, with the caveat that any costs associated with the administration of the estate were to be borne by the parties equally.

Orders