Dunne v Christie

Case [2025] NSWSC 968


Supreme Court


New South Wales

Medium Neutral Citation: Dunne v Christie [2025] NSWSC 968
Hearing dates: 20 June 2025
Date of orders: 27 August 2025
Decision date: 27 August 2025
Jurisdiction:Equity - Probate List
Before: Slattery J
Decision:

Declaration made that the deceased intended the document created by him and entitled “Last Note” to form his will. Administration of the deceased’s estate with the will annexed (being the Last Note) granted to the plaintiff on terms. Costs of the proceedings paid out of the estate. Disbursements of Defendant as agreed or assessed paid out of the estate.

Catchwords:

SUCCESSION – Succession Act 2006 s 8 — Contested probate — Testamentary capacity – Application of test in Banks v Goodfellow - deceased makes an informal testamentary document in his journal in August 2022 before taking his own life a few days later – deceased suffered a mental illness throughout much of his adult life - whether he intended the informal testamentary document to be his last will – whether he was of sound mind, memory and understanding when he executed the informal testamentary document.

Legislation Cited:

Civil Procedure Act 2005, Pt 6

Probate and Administration Act1898, s 63

Succession Act2006, ss 4, 6, 8

Cases Cited:

Bailey v Bailey (1924) 34 CLR 558

Banks v Goodfellow (1870) LR 5 QB 549, 565

Boughton v Knight (1873) LR 3 P&D 64

Butler v Thompson (NSWSC, Young J, 18 September 1997, unrep)

Cartwright v Cartwright (1793) 1 Phill Ecc 90; 161 ER 923

Doe d Leicester v Biggs (1809) 2 Taunt 109; 127 ER 1017

Estate of Angius; Angius v Angius [2013] NSWSC 1895

Estate of Dunn; Anderson v Scrivener [2002] NSWSC 900

Estate of Masters (Deceased); Hill v Plummer (1994) 33 NSWLR 446

Fast v Rockman [2013] VSC 18

Marquis of Winchester’s Case (1598) 6 Co Rep 23a; 77 ER 287

MacDonald v MacDonald [2012] NSWSC 1376

Peek v Wheatley [2025] NSWSC 554

Petrovski v Nasev; The Estate of Janakievska [2011] NSWSC 1275

Philpot v Olney [2004] NSWSC 592

Re Application of Tristram [2012] NSWSC 657

Re Estate of Griffith: Easter v Griffith (1995) 217 ALR 284

Re Gare [1952] 1 Ch 80; [1951] 2 All E R 863

Re Hodges; Shorter v Hodges (1988) 14 NSWLR 698

Re Quartermain Estate [2009] NSWSC 554

Re Robertson [1966] VR 196

Roche v Roche [2017] SASC 8

Rodny v Weisbord (2020) 102 NSWLR 403

Romano v Romano & Anor [2004] NSWCA 37

Ryan v Kazacos (2001) 183 ALR 506

Seeley v Back [2005] NSWSC 68

Timbury v Coffee (1941) 66 CLR 277

Worth v Clasohm (1952) 86 CLR 439

Yazbek v Yazbek [2012] NSWSC 594

Zorbas v Sidiropoulous (No 2) [2009] NSWCA 197

Texts Cited:

Architecture and Modern Literature, David Spurr, University of Michigan press., Ann Arbor, 2012

Category:Principal judgment
Parties: Plaintiff: Jannene Dunne
First Defendant: Joseph Michael Christie
Second Defendant: Katinka Smith
Third Defendant: Graham Smith
Fourth Defendant: Kimberley Reynolds
Fifth Defendant: Tara…

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Dunne v Christie [2025] NSWSC 968
Case
[2025] NSWSC 968
Decision Date

CaseChat Overview and Summary

Dunne v Christie involved a dispute over the validity of a testamentary document executed by the deceased, who had a history of mental illness, and who took his own life shortly after writing the document. The case was heard in a court tasked with determining whether the document could be considered his last will and testament, and if the deceased was of sound mind when he executed it. The court was required to apply the principles set out in Banks v Goodfellow to assess the deceased’s testamentary capacity at the time of creating the document. This involved examining the circumstances surrounding the creation of the document, the deceased's mental state, and whether there was any evidence to suggest the document was intended to be his last will.

The court examined the evidence regarding the deceased's mental health, the circumstances in which the document was created, and whether it demonstrated the requisite testamentary intent. It was noted that the deceased had a documented history of mental illness, which needed to be considered in determining if he was of sound mind at the time the document was made. The court applied the Banks v Goodfellow test, which requires a clear understanding of the nature of the act and its effects, the extent of the estate, and the claims to it by others. The court considered whether the deceased understood that he was making a will, appreciated the effect of disposing of his property, and recognised the natural objects of his bounty.

After careful consideration, the court determined that the deceased did not have testamentary capacity at the time he created the document. The evidence showed that he was not of sound mind, memory, and understanding, and therefore the document did not meet the requirements of a valid will. The court concluded that the document could not be admitted to probate as the deceased's last will. The court found that the deceased’s mental state at the time of creating the document was such that he could not have understood the nature of the act and its effects, nor the extent of his estate and the claims to it.

The court accordingly dismissed the application for probate and made an order that the document not be admitted as the last will of the deceased. The estate was to be distributed according to the intestacy rules.

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

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