Dybac v Czerwaniw; The Estate of the Late Apolonia Czerwaniw [2022] NSWSC 1279
Hearing dates:
7, 8, 9 & 10 February, and additional submissions to 11 March 2022
Date of orders:
12 September 2022
Decision date:
21 September 2022
Jurisdiction:
Equity
Before:
Slattery J
Decision:
Declaration made that the January 2020 testamentary is of no effect. Probate of the testatrix’s 2005 will and 2009 codicil granted in solemn form to the plaintiff/cross-defendant. Cross-claim is dismissed. Directions made for the determination of issues of costs, should they be contested.
Catchwords:
PROBATE - TESTAMENTARY CAPACITY – knowledge and approval of a will – in January 2020 the testatrix was to undergo serious surgery – when about to be given preoperative anaesthesia the testatrix seeks to make another will – the doctors attending upon her draft a testamentary document and then witness the testatrix’s execution of it – the testatrix’s prior wills divided her property equally between her two children, her daughter, the plaintiff/cross-defendant and her son the defendant/cross-claimant – the January 2020 testamentary document gives substantially the whole of her estate to the son – the daughter commences proceedings seeking a declaration of the invalidity of the January 2020 testamentary document and propounding an earlier will and codicil – the defendant/son cross-claims propounding the January 2020 testamentary document as the testatrix’s last will – the plaintiff/daughter contends that the testatrix did not have testamentary capacity at the time of executing the January 2020 testamentary instrument and did not know or approve its contents.
Mason and Handler’sWills, Probate and Administration Service NSW (Butterworths)
Category:
Principal judgment
Parties:
Plaintiff: Zina Dybac Defendant: Basil Czerwaniw Estate of the late Apolonia Czerwaniw, late of Schofields
Representation:
Counsel: Plaintiff: M. Meek SC Defendant: M. Evans
Solicitors: Plaintiff: Anthea McIntyre, McIntyre Legal Defendant: Taras Kolomyjec, Terry A Kolomyjec & Associates
File Number(s):
2020/137800
Publication restriction:
No
Judgment
By her mid-teens Apolonia Czerwaniw had endured tyranny, famine, and war. Born in the Donetsk region of Ukraine in 1927, between the ages of…
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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AGLC
Dybac v Czerwaniw [2022] NSWSC 1279
Case
[2022] NSWSC 1279
Decision Date
CaseChat Overview and Summary
The dispute in Dybac v Czerwaniw involved the validity of a testamentary document executed by a testatrix who was about to undergo serious surgery in January 2020. The daughter, Dybac, sought a declaration of invalidity of the January 2020 testamentary document and propounded an earlier will and codicil, while the son, Czerwaniw, cross-claimed propounding the January 2020 testamentary document as the testatrix’s last will. The core issue for the court was whether the testatrix possessed the requisite testamentary capacity at the time she executed the January 2020 document and whether she knew and approved its contents. The court had to assess the circumstances surrounding the execution of the will, particularly given the testatrix’s imminent surgery and the involvement of medical practitioners in drafting and witnessing the will.
The legal issues before the court included determining the testatrix's testamentary capacity at the time she executed the January 2020 document and whether she had knowledge and approval of its contents. The court considered the circumstances under which the will was made, including the testatrix's state of mind, her understanding of the contents of the will, and the influence of external factors such as the presence of medical professionals. The court examined the medical evidence, the context of the will's execution, and whether the testatrix’s decision to alter her estate plan was influenced by any undue pressure or lack of understanding.
The court found that the testatrix did not have testamentary capacity at the time she executed the January 2020 testamentary document. The evidence showed that the testatrix was under significant stress and medical influence when she made the will, and it was not demonstrated that she had the necessary understanding and approval of its contents. The court concluded that the January 2020 testamentary document was invalid and upheld the earlier will which divided the estate equally between the daughter and the son. The court's decision was based on the testatrix's lack of testamentary capacity and the absence of knowledge and approval of the January 2020 will.
In conclusion, the court declared the January 2020 testamentary document invalid and upheld the earlier will, which divided the testatrix’s estate equally between her daughter and son. The court’s orders included a declaration of the invalidity of the January 2020 testamentary document and recognition of the earlier will as the testatrix’s valid last will.