Bell ACJ at [1]; Macfarlan JA at [2]; McCallum JA at [79]
Decision:
Appeal dismissed with costs.
Catchwords:
SUCCESSION – testamentary capacity – weight to be given to conclusory expert medical evidence on the legal issue of whether deceased had testamentary capacity – weight to be given to solicitor’s evidence of practice concerning clients’ execution of wills
EVIDENCE – weight to be given to solicitor’s evidence of practice concerning clients’ execution of wills – Connor v Blacktown District Hospital [1971] 1 NSWLR 713 and other authorities referred to
[This headnote is not to be read as part of the judgment]
On 10 September 2007 Ms Marija Jakopovic, the deceased, signed a will leaving her property equally to her two children, Ms Branka Uribe and the respondent, Mr Boris Jakopovic (“the September 2007 Will”). The will provided that in the event that Boris predeceased his mother leaving children surviving him, those children should take his share. An earlier will (“the May 2007 Will”) provided that in the event that Boris or Branka predeceased their mother leaving children surviving them, those children should take their parent’s share.
Branka predeceased her mother leaving her child, Ms Anita Drivas, the appellant, surviving her.
After the deceased’s death in September 2015, a grant in common form of probate of the September 2007 Will was made to Boris. Anita subsequently sought probate of the May 2007 Will on the basis that the September 2007 Will was invalid due to the deceased’s then lack of testamentary capacity. Anita later confined her claim to one for letters of administration with an even earlier will…
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
AGLC
Drivas v Jakopovic [2019] NSWCA 218
Case
[2019] NSWCA 218
Decision Date
CaseChat Overview and Summary
The proceeding concerned an appeal from a decision of the Supreme Court of New South Wales regarding the testamentary capacity of the deceased, Mr. Jakopovic. The appellant, Mr. Drivas, sought to challenge the validity of the deceased's will, alleging that the deceased lacked the necessary mental capacity at the time of its execution. The respondents, the beneficiaries under the will, sought to uphold its validity. The appeal was heard by Bell ACJ, Macfarlan and McCallum JJA of the Court of Appeal of the Supreme Court of New South Wales.
The central legal issues before the Court of Appeal were twofold. Firstly, the court was required to determine the appropriate weight to be given to conclusory expert medical evidence when assessing whether a deceased person possessed testamentary capacity. Secondly, the court had to consider the weight to be attributed to the evidence of a solicitor regarding their usual practice and procedures when overseeing the execution of wills by clients.
The Court of Appeal affirmed the principles that while expert medical evidence is valuable, it is ultimately for the court to determine the legal question of testamentary capacity based on all the evidence. The court also considered the weight of a solicitor's evidence of practice, referencing authorities such as *Connor v Blacktown District Hospital* [1971] 1 NSWLR 713, in assessing the reliability of their testimony concerning the circumstances of the will's execution. The court found no error in the primary judge's assessment of the evidence and the application of the relevant legal tests for testamentary capacity.