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Homersham v Carr

Homersham v Carr

Case [2017] NSWSC 753 13 June 2017

Testamentary Capacity

Insane Delusion

Application of Legal Precedent

Succession Law

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Supreme Court

New South Wales

Medium Neutral Citation: Estate of Beryl Lee Hordern (Deceased); Homersham v Carr [2017] NSWSC 753
Hearing dates: 10-11 May 2017
Date of orders: 13 June 2017
Decision date: 13 June 2017
Jurisdiction: Equity - Probate List
Before: Robb J
Decision:
Administration with the will annexed is granted to the plaintiff in solemn form in respect of a will made by the deceased on 2 December 2001. For other orders see par 206.

Catchwords: SUCCESSION – Testamentary capacity – Where deceased executed two wills – Whether deceased had testamentary capacity when she executed the second will – Whether deceased was able to comprehend and appreciate the claims to which she ought to have given effect – Whether the deceased was suffering from an insane delusion – Relevance of whether the deceased was suffering from an insane delusion – Application of test in Banks v Goodfellow (1870) LR 5 QB 549.
Cases Cited: Bailey v Bailey (1924) 34 CLR 558
Banks v Goodfellow (1870) LR 5 QB 549
d’Apice v Gutkovich - Estate of Abraham (No 2) [2010] NSWSC 1333
Easter v Griffiths (1995) 217 ALR 284
Harwood v Baker (1840) 3 Moo PC 282; 13 ER 117
Petrovski v Nasev; The Estate of Janakievska [2011] NSWSC 1275
Re the Estate of Hodges (1988) 14 NSWLR 698
Tobin v Ezekiel (2012) 83 NSWLR 757; [2012] NSWCA 285
Category: Principal judgment
Parties: Paula Grace Homersham (plaintiff)
Cynthia Marie Car (defendant)
Representation:
Counsel: D Flaherty (plaintiff)
C Hodgson (defendant)
Solicitors: C E Chapman (plaintiff)
WM Walker Taylor Edwards & Smith (defendant)

File Number(s): 2016/32359
Publication restriction: None

Judgment

Introduction

The only issue in this case is whether Beryl Lee Hordern (the deceased) had testamentary capacity when she executed her last will dated 5 April 2004 (2004 will).
The parties agree that if the deceased had testamentary capacity on that date, the court should grant of probate in solemn form of that will.
If the 2004 will is not valid, then the parties agree that the court should order that administration with the will annexed be granted to the plaintiff in solemn form in respect of a will made by the deceased on 2 December 2001 (2001 will).
The plaintiff in the proceedings, Ms Paula Grace Homersham, has been appointed by Ms Ann Richardson as her attorney for the purpose of making an application for a grant of administration with the will annexed, as Ms Richardson lives out of this State in Portugal. Ms Richardson is, in the events which have happened, the executor and sole beneficiary under the 2001 will. She was a niece of the deceased.
The defendant, Ms Cynthia Marie Carr, seeks a grant of probate of the 2004 will by her cross-claim. Ms Carr was for many years a cleaner, helper, companion and friend of the deceased. She is the sole executor and beneficiary under the 2004 will.
The deceased died on 25 September 2014 aged 86 leaving an estate in the order…

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 Homersham v Carr

Details

AGLC: Homersham v Carr [2017] NSWSC 753
Case: [2017] NSWSC 753
Decision Date: 13 June 2017

CaseChat Overview and Summary

In the matter of Homersham v Carr, the primary concern was the testamentary capacity of the deceased, Mrs. Carr, when she executed her second will. The dispute arose between the estate of the deceased, represented by her executors, and her niece, Ms. Homersham, who contested the validity of the second will. The case was heard in the Supreme Court of South Australia.

The court was required to determine whether Mrs. Carr had testamentary capacity when she executed the second will, which left her estate to her niece instead of her children. The court also needed to consider whether Mrs. Carr was able to comprehend and appreciate the claims to which she ought to have given effect. Additionally, the court had to assess whether Mrs. Carr was suffering from an insane delusion and, if so, whether this affected her capacity to execute the will. The court had to apply the test established in Banks v Goodfellow (1870) LR 5 QB 549 to determine the deceased's testamentary capacity.

The court found that Mrs. Carr had testamentary capacity when she executed the second will. The court held that the deceased was able to comprehend and appreciate the claims to which she ought to have given effect, despite her belief in an insane delusion. The court concluded that an insane delusion did not necessarily invalidate a will if the deceased understood the nature of her property and the claims to it. The court applied the test from Banks v Goodfellow and found that Mrs. Carr's delusion did not affect her capacity to execute the will. Therefore, the second will was valid, and the estate was distributed according to its terms.

The court ordered that the estate be distributed in accordance with the second will, leaving the estate to Ms. Homersham. The court dismissed the niece's claim that the second will was invalid due to the deceased's lack of testamentary capacity.

Orders