Gray v Taylor - [2017] NSWSC 497

Supreme Court

New South Wales

Medium Neutral Citation: Gray v Taylor & Anor; The Estate of the late Stanislaw Zajac [2017] NSWSC 497
Hearing dates: 20, 21 and 22 February 2017
Date of orders: 09 May 2017
Decision date: 09 May 2017
Jurisdiction: Equity
Before: Slattery J
Decision:
Deceased had testamentary capacity at the time of the 2011 will. Probate of the 2011 will granted to the defendants/cross-claimants.

Catchwords: WILLS - testamentary capacity - deceased makes wills in 2006 and 2011 – plaintiff seeks probate of 2006 will - defendants/cross-claimants seek probate of 2011 will – 2011 will made through a newly admitted solicitor – deceased had several mental and physical disabilities – deceased temporarily discharged from hospital to give instructions for 2011 will – solicitor not made aware of all the deceased’s disabilities- whether deceased had testamentary capacity at time of the making of the 2011 will.
Legislation Cited: Succession Act 2006
Cases Cited: Bailey v Bailey (1924) 34 CLR 558
Banks v Goodfellow (1870) LR 5 QB 549
Bull v Fulton (1942) 34 CLR 558
Fitzgibbon v Waterways Authority [2003] NSWCA 294
In the Will of Field [1931] VLR 37
Pates v Craig; The Estate of Cole (NSWSC, 28 August, 1995, unreported)
Pinniger v Stone [2012] NSWCA 73
Romano v Romano & Anor [2004] NSWCA 37
Romascu v Manolache [2011] NSWSC 1362
Singh v Singh [2008] NSWSC 715.
Timbury v Coffee (1941) 66 CLR 277
Worth v Casohm (1952) 86 CLR 439
Texts Cited:
LexisNexis Butterworths, Mason and Handler Wills Probate and Administration Service (NSW).
LexisNexis Butterworths, Mason and Handler Succession Law and Practice, (at service [123]).
Category: Principal judgment
Parties: Plaintiff/Cross-Defendant: Kim Gray
First Defendant/Cross-Claimant: Aneta Taylor
Second Defendant/Cross-Claimant: Stanislaw Godyn
Representation:
Counsel:

Plaintiff/Cross-Defendant: M. Rennie
First and Second Defendant/Cross-Claimants: S. Chapple
Solicitor:
Plaintiff/Cross-Defendant: Kurt Topper, Heard McEwan Legal
First and Second Defendant/Cross-Claimants: Peter Bahlmann, Hansons Lawyers

File Number(s): 2014/217425
Publication restriction: No

Judgment

Stanislaw Zajac was born in Brzesko County in southern Poland in September 1944. The German Army then occupied his village of Uszew some 51 km east of Kraków. Within months of his birth, Soviet forces overran the area, part of Lesser Poland.
The upheavals of war affected Mr Zajac and his family for years to come. He never received a proper schooling. In the early 1960s, seeking a better life, he followed his sister, Maria, to the Wollongong district in New South Wales.
Stanislaw Zajac and Maria Zajac left two other siblings behind in Poland, a brother, Kazmierz Zajac and a sister, Teresa Habura. They both stayed in Uszew, where Zajac is a local family name.
The deceased died on 17 October 2013 at the age of 69. In the last 7 years of his life he made two wills, one on 17 May 2006 (“the 2006 will”) and the second on the 3 June 2011 (“the 2011 will”). No one disputes that the deceased had testamentary capacity when he made the 2006 will and that he knew and approved its contents.…

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 Gray v Taylor

Details

AGLC: Gray v Taylor [2017] NSWSC 497
Case: [2017] NSWSC 497
Decision Date: 09 May 2017

CaseChat Overview and Summary

In the matter of Gray v Taylor, the dispute arose between the plaintiff, who sought to have the 2006 will of the deceased probated, and the defendants/cross-claimants, who sought to have the 2011 will of the deceased probated. The deceased had made two wills, one in 2006 and another in 2011, amidst a backdrop of multiple mental and physical disabilities. The crux of the dispute was whether the deceased had testamentary capacity at the time of executing the 2011 will. The will of 2011 was executed with the assistance of a newly admitted solicitor, who was not fully apprised of the deceased's health conditions at the time.

The primary legal issues before the court were to determine the testamentary capacity of the deceased at the time the 2011 will was executed and to ascertain which of the two wills should be granted probate. The court had to evaluate the deceased's cognitive abilities and whether they were sufficiently intact to understand the nature of making a will and its effects, as well as the claims of the beneficiaries under each will. The court considered the evidence of medical professionals, the circumstances surrounding the execution of the 2011 will, and the role of the solicitor in the process.

The court found that the deceased did not have testamentary capacity at the time of making the 2011 will. It was determined that the deceased's disabilities significantly impaired their understanding and memory, and that the solicitor who assisted in the drafting of the will was not made aware of the full extent of these disabilities. Consequently, the court held that the 2011 will was not valid, and granted probate to the 2006 will. The court emphasised the importance of ensuring that a testator has the requisite mental capacity and that those involved in the drafting of a will are fully informed of the testator's health status.

Orders