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Hobhouse v Macarthur-Onslow

Hobhouse v Macarthur-Onslow

Case [2016] NSWSC 1831 16 December 2016

Testamentary Capacity

Knowledge and Approval

Severance

Excising Clauses

Mutually Inconsistent Outcomes

Succession Law

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Supreme Court

New South Wales

Medium Neutral Citation: Hobhouse v Macarthur-Onslow [2016] NSWSC 1831
Hearing dates: 18 – 21 April 2016 and 13 July 2016
Decision date: 16 December 2016
Jurisdiction: Equity
Before: Robb J
Decision:
(1) The parties are directed to bring in short minutes of order to give effect to these reasons for judgment in accordance with par 639.
(2) The parties are invited to make submissions on the costs order that should be made by the court
Catchwords:
SUCCESSION – wills, probate and administration – testamentary instruments – wills – deceased died leaving two wills – the 1988 will divided estate almost equally between two adult children, being the plaintiff and first defendant, while the 2004 will had the effect of giving the first defendant control of the exercise of the discretion of the trustee of a family discretionary trust that would permit the first defendant to distribute a substantial portion of the property controlled by the deceased as he saw fit, including to himself – deceased suffered from moderate dementia leading up to the making of the 2004 will – plaintiff sought grant of probate of 1988 will – cross claimants sought grant of probate of 2004 will –plaintiff alleged lack of testamentary capacity by the deceased and lack of knowledge and approval of the deceased in relation to 2004 will – principles relevant to testamentary capacity and absence of knowledge and approval of contents of will by a testator with a cognitive disability considered – held testator had testamentary capacity – held testator did not by reason of her cognitive disability sufficiently know and approve of the terms of the 2004 will that gave the first defendant control of the trustee of the family discretionary trust to justify those terms being included in the will admitted to probate – held that the 2004 will should be admitted into probate with those terms excised
SEVERANCE – severance of part of will – whether the excision of disputed clauses would involve the making of a new testamentary instrument – where the deceased wished to achieve two testamentary outcomes which were mutually inconsistent – held that the consequence of which the deceased did not know and approve was by and large of equal or greater importance to the deceased – held that probate of the 2004 will should be granted with certain terms excised
Legislation Cited: Conveyancing Act 1919 (NSW)
Guardianship Act 1987 (NSW)
Powers of Attorney Act 2003 (NSW)
Successions Act 2006 (NSW)
Vendor Duty Act 2004 (NSW)
Cases Cited: A v N [2012] NSWSC 354
ASIC v Hellicar (2012) 247 CLR 345; [2012] HCA 17
Atter v Atkinson (1869) LR 1 P & D 665
Bailey v Bailey (1924) 34 CLR 558; (1924) 30 ALR 230
Ball v Mannin (1829) 1 Dow & Cl 380; 6 ER 568
Banks v Goodfellow (1870) 5 QB 549
Barry v Butlin (1838) 2 Moo PC 48
Beverley v Watson [1995] ANZ ConvR 369
Church v Mason [2013]…

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 Hobhouse v Macarthur-Onslow

Details

AGLC: Hobhouse v Macarthur-Onslow [2016] NSWSC 1831
Case: [2016] NSWSC 1831
Decision Date: 16 December 2016

CaseChat Overview and Summary

In the case of Hobhouse v Macarthur-Onslow, the deceased left two wills: a 1988 will and a 2004 will. The plaintiff, who was one of the deceased's children, sought a grant of probate for the 1988 will, while the first defendant sought a grant of probate for the 2004 will. The plaintiff alleged that the deceased lacked testamentary capacity and knowledge and approval of the contents of the 2004 will due to moderate dementia.

The court had to determine whether the deceased had testamentary capacity and whether she sufficiently knew and approved the terms of the 2004 will. The court held that the deceased had testamentary capacity but did not sufficiently know and approve the terms of the 2004 will that gave the first defendant control of the family discretionary trust. The court concluded that the 2004 will should be admitted into probate with those terms excised.

The court also considered whether the excision of the disputed clauses would involve the making of a new testamentary instrument. The court held that the consequence of the deceased not knowing and approving of the terms was by and large of equal or greater importance to the deceased. Therefore, the court granted probate of the 2004 will with certain terms excised.

The final orders were that the 2004 will should be admitted into probate with certain terms excised and that probate of the 1988 will should be refused.

Orders