Probate granted in respect of informal testamentary document.
CATCHWORDS:
SUCCESSION - wills, probate and administration - the making of a will - deceased executed two informal testamentary documents - whether documents were intended by deceased to constitute his wills - whether deceased possessed testamentary capacity at the time of making documents - held that both documents intended to constitute wills - deceased possessed testamentary capacity at the time of making both documents - probate granted in respect of later document.
IN THE SUPREME COURT OF NEW SOUTH WALES EQUITY DIVISION PROBATE LIST
WARD J
FRIDAY 25 SEPTEMBER 2009.
111441/06 PETER JAMES KING & ANOR V JUDITH ELIZABETH HUDSON IN THE ESTATE OF GARRY CHARLES KING
JUDGMENT
1 In this matter, two of the siblings of the late Garry Charles King seek declarations and orders in relation to his estate. The deceased committed suicide on 30 October 2005. The deceased had signed and dated two documents, each entitled “Last Will and Testament Garry Charles King”, the later on 15 October 2005 and the earlier on 24 June 2005. Neither document was witnessed. There is therefore an issue as to the formal validity of the respective documents. Ms Hudson is the deceased’s widow. She has raised an issue as to the deceased’s testamentary capacity in both June and October 2005. The executors seek probate of the 15 October 2005 document or, in the alternative, the 24 June 2005 document.
2 The alleged lack of testamentary capacity is particularised in the defence, broadly, as being the exhibition by the deceased of depression and anxiety symptoms; the expression by the deceased of suicidal intentions; the neglect by the deceased of his business affairs; and the harbouring by the deceased of serious delusions and erroneous beliefs.
3 I was informed at the commencement of the hearing…
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.
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AGLC
King v Hudson [2009] NSWSC 1013
Case
[2009] NSWSC 1013
Decision Date
CaseChat Overview and Summary
In the case of King v Hudson, the deceased executed two informal testamentary documents, and the dispute centred on whether these documents were intended by the deceased to constitute his wills, and whether the deceased possessed testamentary capacity at the time of making the documents. The court was required to determine whether the two documents should be considered as a single will or as separate wills, and if the deceased had the requisite mental capacity to make a valid will at the time of execution.
The legal issues in this case included the interpretation of the deceased's intentions regarding the two testamentary documents, and the assessment of the deceased's testamentary capacity. The court had to consider whether the two documents were intended to be separate or cumulative, and if the deceased had the mental capacity to make a valid will at the time of making the documents. The court also had to consider whether the later document could be granted probate, even if the earlier document was found to be valid.
The court found that both documents were intended by the deceased to constitute his wills. The court held that the deceased possessed testamentary capacity at the time of making both documents, and that the later document was intended to replace the earlier document. The court granted probate in respect of the later document, finding that it was the deceased's final testamentary intention. The court held that the deceased had the mental capacity to make a valid will at the time of making both documents, and that the later document should be given effect.
The final orders of the court were that probate be granted in respect of the later testamentary document, and that the earlier document be disregarded for the purposes of the deceased's estate. The court found that the deceased had the requisite testamentary capacity to make a valid will at the time of making both documents, and that the later document was the deceased's final testamentary intention. The court held that the earlier document was superseded by the later document, and that the later document should be given effect in accordance with the deceased's wishes.