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Dunne v Christie

Dunne v Christie

Case [2025] NSWSC 968 27 August 2025

Testamentary Capacity

Contested Probate

Unconscionable Conduct

Succession Law

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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…

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 Dunne v Christie

Details

AGLC: Dunne v Christie [2025] NSWSC 968
Case: [2025] NSWSC 968
Decision Date: 27 August 2025

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