Lehr v Matters - [2024] VSC 640

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE
IN ITS PROBATE JURISDICTION
TRUSTS, EQUITY AND PROBATE LIST

S PRB 2023 34654

IN THE MATTER of the estate of LIOR SCHMAMAN, deceased

APPLICATION BY:

WARREN HAROLD LEHR and ANDREW LYONS	Plaintiffs
v
BENJAMIN MATTERS	Caveator

---

JUDGE:	Daly AsJ
WHERE HELD:	Melbourne
DATE OF HEARING:	10 October 2024
DATE OF JUDGMENT:	23 October 2024
CASE MAY BE CITED AS:	Lehr v Matters
MEDIUM NEUTRAL CITATION:	[2024] VSC 640

---

WILLS AND ESTATES — Testamentary capacity — Application to strike out caveat — Grounds of objection to probate —Whether prima facie case for investigation established — Alterations to testamentary intentions — Substantial changes between 2020 and 2021 wills — Exclusion of step-brother and mother from 2021 will — Change in executors and beneficiaries — Whether changes reflect rational decision-making or lack of capacity — Re Matthews [2022] VSC 15 and Public Trustee v Alzheimer’s Australia WA Ltd (No 2) [2014] WASC 337, referred to — Presumption of testamentary capacity for duly executed will — Impact of physical and psychiatric conditions on capacity — Allegations of cognitive impairment due to complex regional pain syndrome, anxiety, depression, PTSD, and autism — Effect of opioid medications, ketamine, and medical marijuana on cognitive function — Principles from Gardiner v Hughes (No 2) [2019] VSCA 198 and Re Robustelle (No 2) [2021] VSC 118, applied.

PRACTICE AND PROCEDURE — Application to strike out caveat — Whether particulars disclose a case for investigation — Role of evidence at the preliminary stage — Absence of affidavit evidence from the solicitor who prepared the will — Whether sufficient evidence provided to warrant further investigation — Prima facie case established — Application to strike out caveat dismissed.

---

APPEARANCES:	Counsel	Solicitors
For the Plaintiffs	Mr A Klotz of counsel	Batten Sacks
For the Caveator	Mr N Baum of counsel	Jessop & Komesaroff

HER HONOUR:

Introduction and background

Mr Lior Schmaman (‘deceased’), died on 3 June 2022 at his home in Carrum Downs, at the age of 41. He was not married, and had no children. While his death certificate records the deceased as suffering from ischaemic heart disease, the actual cause of death was described as ‘mixed drug toxicity (oxycodone, codeine, benzodiazepines, citalopram, mirtazapine)’ (‘overdose’). While it is apparent from the amended grounds of objection (‘particulars’) filed by the caveator in this proceeding, Mr Benjamin Matters, that there was a coronial investigation into the death of the deceased, there is nothing before me to indicate whether the overdose was accidental or deliberate.

In the years leading up to his death, the deceased suffered a number of physical and psychological impairments, largely as a consequence of a traffic accident in 2015 (‘2015 accident’), which caused injuries to his left knee and foot which necessitated surgical repair. In his written submissions, Mr Matters, the deceased’s step-brother, described the deceased’s circumstances as follows:

The [2015 accident] had a profound impact on Lior. Following that surgery, Lior developed complex regional pain…

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 Lehr v Matters

Details

AGLC: Lehr v Matters [2024] VSC 640
Case: [2024] VSC 640
Decision Date: 23 October 2024

CaseChat Overview and Summary

Lehr v Matters involved the dispute over the validity of two wills executed by the deceased, Ms. Lehr, who passed away in 2022. The case was heard in the Supreme Court of Victoria. The dispute centred on whether Ms. Lehr had the testamentary capacity to execute the 2021 will, which substantially altered her testamentary intentions from the 2020 will. The 2021 will excluded her step-brother and mother, and made significant changes to the executors and beneficiaries. The step-brother and mother had lodged caveats against the grant of probate of the 2021 will, objecting to its validity due to concerns about Ms. Lehr’s mental capacity at the time of its execution.

The legal issues before the court included determining whether a prima facie case for investigating Ms. Lehr’s testamentary capacity had been established and whether the changes in the 2021 will reflected rational decision-making or a lack of capacity. The court considered the presumption of testamentary capacity in the absence of evidence to the contrary and the impact of Ms. Lehr’s physical and psychiatric conditions on her capacity to make a will. The court also examined the effect of various medications on her cognitive function. The principles from earlier cases such as Gardiner v Hughes and Re Robustelle were applied to evaluate the evidence and determine whether a genuine dispute existed.

The court found that the particulars lodged by the caveators disclosed a case for investigation, as they raised a genuine dispute about the deceased’s capacity to make the 2021 will. The court noted the absence of affidavit evidence from the solicitor who prepared the will but held that the evidence provided was sufficient to warrant further investigation. Consequently, the application to strike out the caveats was dismissed, allowing the investigation into Ms. Lehr’s testamentary capacity to proceed.

Orders