Grace v Franke - [2000] NSWSC 256

CITATION: Grace v Franke [2000] NSWSC 256

CURRENT JURISDICTION: Probate Division

FILE NUMBER(S): SC 101198 of 1999

HEARING DATE(S): 8, 9 & 10 March 2000

JUDGMENT DATE: 4 April 2000

PARTIES :

Neville Homes Grace v Coral Franke

JUDGMENT OF: Master Macready at 1

COUNSEL : B. Skinner (P)
C. Harris (D)

SOLICITORS: Church & Grace (P)
Conway MacCallum (D)

CATCHWORDS: Succession. Wills Probate and Administration. Application for probate of codicil when testatrix suffered from an alleged delusion that a beneficiary under a will had stolen from the testatrix. - Held testatrix did not have testatmentary capacity. - Probate of codicil refused.

CASES CITED: Re Griffith, Easter v Griffith NSWCA 7 June 1995 unreported at 10 - 13.

DECISION: Paragraph 37

- 1 -

THE SUPREME COURT
OF NEW SOUTH WALES
PROBATE DIVISION

MASTER MACREADY

Tuesday 4 April 2000.
101198 OF 1999 NEVILLE HOMES GRACE v CORAL FRANKE
JUDGMENT

1 MASTER: In these proceedings the plaintiff seeks that probate be granted to him of the will dated 31 March 1998 and a codicil dated 26 May 1998 of the late Mae Louise Thomson. The defendant by a cross claim filed 7 May 1999 opposes the grant of probate of the codicil dated 26 May 1988 on the basis that at the time of making the codicil the testatrix lacked testamentary capacity. 2 Under the will made 31 March 1998 the testatrix gave one half of her estate to the defendant and the other half to be shared equally between her friends Geraldine Gallagher, Judy Harrison, Richard Fraser, Andrew Harper and Cynthia Rogan. The defendant had been a friend of many years standing of the testatrix and had looked after her for many years. Under the codicil made 26 May 1998 the testatrix revoked the bequest to the defendant and directed that that such one half share of the estate be paid equally to Geoffrey Gallus and Lois Gallus. 3 Although the testatrix was suffering from a mild form of dementia at the time she made her will in March 1998 there is no suggestion from either party or in the medical evidence that she did not have the appropriate testamentary capacity. The lack of testamentary capacity in this case focuses upon the time when the testatrix executed the codicil on 26 May 1998. In particular it was suggested in evidence and submissions that the testatrix was suffering at the time she made the codicil from a delusion that the defendant had stolen from her. The evidence in the case is clear that this fact did not happen. 4 It is useful to deal with some of the general history before turning more closely to the matters at issue. The testatrix was born in 1906. The testatrix and her husband had no children of their own and in 1980 she purchased a home unit at Oceana Apartments at Elizabeth Bay Road, Elizabeth Bay. The defendant owned a unit in that apartment block. 5 In May 1988 the testatrix’s husband died and…

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 Grace v Franke

Details

AGLC: Grace v Franke [2000] NSWSC 256
Case: [2000] NSWSC 256
Decision Date: 4 April 2000

CaseChat Overview and Summary

The case of Grace v Franke involved an application for the probate of a codicil to a will. The testatrix, who had passed away, had executed a codicil that disinherited a beneficiary who had been named in the original will. The deceased believed that this beneficiary had stolen from her, which she attributed to a delusion. The executor of the estate, Grace, sought to have the codicil admitted to probate, while Franke, the proposed disinherited beneficiary, opposed the application. The matter was heard in the Supreme Court of Victoria.

The primary legal issue before the court was whether the testatrix had testamentary capacity at the time she executed the codicil. Specifically, the court needed to determine if the testatrix's delusion about the beneficiary's theft significantly impaired her ability to understand the nature and effect of making a will, including the disposition of her property. The court also had to consider whether this delusion was so severe that it rendered the testatrix incapable of making a valid codicil.

The court found that the testatrix's delusion played a critical role in her decision-making process regarding the codicil. The evidence presented indicated that the testatrix's belief in the beneficiary's theft was so entrenched that it clouded her judgment and affected her testamentary capacity. The court concluded that because the testatrix was unable to appreciate the true nature of her actions and the implications of disinheriting the beneficiary due to her delusion, she did not possess the necessary testamentary capacity. Consequently, the codicil was deemed invalid, and the application for its probate was refused.

The court's decision resulted in the refusal of probate for the codicil. The original will, unaffected by the invalid codicil, would stand as the testatrix's last testamentary disposition. The beneficiary who was disinherited by the codicil would be entitled to the benefits specified in the original will.

Orders