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Kerr v Badran

Kerr v Badran

Case [2004] NSWSC 735 17 August 2004

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CITATION: Kerr & anor v Badran & anor Estate of Badran [2004] NSWSC 735

HEARING DATE(S): 20, 21, 22, 23 and 27 July 2004

JUDGMENT DATE:
17 August 2004

JURISDICTION:
Equity Division
Probate List

JUDGMENT OF: Windeyer J at 1

DECISION: 1995 will admitted to probate

CATCHWORDS: SUCCESSION – Probate – Testamentary capacity – testator aged at date of will – evidence of some irrational behaviour spread over period of years before and after date of will – whether doubt raised sufficient to determine will not valid – requirement for deceased to understand extent of assets – consideration of Banks v Goodfellow test in modern world

LEGISLATION CITED: Family Provision Act 1982

CASES CITED: Bailey v Bailey (1924) 34 CLR 558
Banks v Goodfellow [1870] 5 QB 549
Commercial Union Assurance Company of Australia Limited v Ferrcom Pty Ltd (1991) 22 NSWLR 389
Estate of Griffith dec'd; Easter v Griffiths ( unreported NSWCA 7 June 1995)
Estate of Hodges dec'd; Shorter v Hodges (1988) 14 NSWLR 698.
Jones v Dunkel (1959) 101 CLR 298
R v GEC [2001] 3 VR 334
Worth v Clasohm (1952) 86 CLR 439

PARTIES :
John Kerr (First Plaintiff)
Raymond Badran (Second Plaintiff)
Maurice Badran (First Defendant)
Joyce Freije (Second Defendant)

FILE NUMBER(S): SC 119957 of 2002

COUNSEL: Mr J Simpkins SC (Plaintiffs)
Mr C Evatt with him Mr MK Rollinson (First Defendant)
Mr M Cashion SC with him Mr P Bolster (Second Defendant)

SOLICITORS: Home Wilkinson Lowry (Plaintiffs)
Newman and Associates (First Defendant)
Vandervords (Second Defendant)

- 28 -

IN THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION
PROBATE LIST

WINDEYER J

TUESDAY 17 AUGUST 2004

119957/02 JOHN KERR & ANOR V MAURICE BADRAN & ANOR IN THE ESTATE OF MICHEL BADRAN

JUDGMENT

Issue

1 The question to be decided is whether Mr Michel Badran had testamentary capacity at the time he signed a will dated 14 March 1995.

Facts

2 Mr Michel Badran (the deceased) died on 24 June 2002, aged 95. His wife pre-deceased him. He had three children, Maurice, Raymond and Joyce, at the date of his death aged respectively 70, 68 and 66. Mr Raymond Badran is one of the plaintiffs; Mr Maurice Badran and Mrs Joyce Freije are the defendants. As it will be necessary to refer to them often I will do so by their first names.

3 The proceedings concern three testamentary instruments of the deceased. The latest in time is the will dated 14 March 1995. If that document is not admitted to probate then its predecessor is a will dated 13 June 1985 and a codicil to that will dated 16 August 1989. It is conceded that if the latest document is not admitted to probate then a grant should be made of probate of the 1985 will with the 1989 codicil. There is no challenge to the due execution of any document. Testamentary capacity at the time of the last will is the only issue. Lack of knowledge and approval is raised…

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 Kerr v Badran

Details

AGLC: Kerr v Badran [2004] NSWSC 735
Case: [2004] NSWSC 735
Decision Date: 17 August 2004

CaseChat Overview and Summary

The parties in this case are Kerr, the executrix of the estate of the deceased, and Badran, who seeks to challenge the validity of the deceased's will. The dispute centres on the deceased's testamentary capacity at the time of making the will, which Badran contends was insufficient due to the deceased's alleged irrational behaviour over a period before and after the will was executed. The matter was heard in the Supreme Court of New South Wales.

The legal issues before the court involved determining the deceased's testamentary capacity at the time of making the will, specifically whether the evidence of irrational behaviour was sufficient to cast doubt on the deceased's understanding of the extent of their assets and the nature of the bequests. The court was required to apply the Banks v Goodfellow test to assess if the deceased had a sufficient understanding of their estate and the claims to which they were subject.

The court found that while the deceased exhibited some irrational behaviour over a period, this did not necessarily equate to a lack of testamentary capacity at the specific time the will was executed. The court noted that the Banks v Goodfellow test requires the deceased to have a general understanding of the nature and extent of their property and the persons who would naturally expect to benefit from it. The court concluded that there was no doubt raised to such an extent that it would determine the will invalid. The court held that the deceased had the requisite understanding of their estate and the claims to which they were subject at the time the will was executed.

The court ordered that the will was valid and that Kerr, as executrix, was entitled to proceed with the administration of the estate in accordance with the terms of the will. Badran's challenge was dismissed.

Orders