22 June 2021, last written submissions 1 July 2021
Decision date:
06 August 2021
Before:
Meagher JA at [1]; Leeming JA at [2]; Payne JA at [218].
Decision:
1. Appeal dismissed.
2. Cross-appeal dismissed.
3. The appellant David Lewis to pay the costs of the first respondent Peter Lewis of the appeal and cross-appeal.
Catchwords:
SUCCESSION – contested probate – knowledge and approval – suspicious circumstances - significance of reading out will to capable testator – whether reading out will to capable testator who executes it will discharge onus on propounder – whether sufficient to establish knowledge of contents of will or whether it may be necessary to establish knowledge of its effect – consideration of Tobin v Ezekiel (2012) 83 NSWLR 757; [2012] NSWCA 285 – consideration of “mistake doctrine” – significance of statutory power to rectify wills
SUCCESSION – contested probate – severance of testamentary instruments – power to admit only those clauses to probate of which testator has been shown to have known and approved – distinction between omitted clauses which confer bequests and omitted clauses which confer power – Osborne v Smith (1960) 105 CLR 153; [1960] HCA 89 considered and explained
SUBPOENAS – production of documents – redaction of parts of documents on ground of relevance – distinction between redaction for privilege and redaction for relevance
Curlex Manufacturing Pty Ltd v Carlingford Australia General Insurance Ltd [1987] 2 Qd R 335
Director General of Department of Community Services; Re Sophie
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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Details
AGLC
Lewis v Lewis [2021] NSWCA 168
Case
[2021] NSWCA 168
Decision Date
CaseChat Overview and Summary
The case of *Lewis v Lewis* concerned a contested probate application. The dispute arose between David Lewis (the appellant) and Peter Lewis (the first respondent) regarding the validity of a will. The matter was heard by the Court of Appeal of New South Wales, comprising Meagher, Leeming, and Payne JJA.
The primary legal issues before the court were whether the propounder of a will had discharged the onus of proving knowledge and approval by demonstrating that the will was read to a capable testator who then executed it. This involved considering whether such a demonstration was sufficient to establish knowledge of the will's contents or if it was necessary to prove knowledge of its effect. The court also had to determine the significance of the "mistake doctrine" and the statutory power to rectify wills in this context. Furthermore, the court considered the principles relating to the severance of testamentary instruments, specifically the power to admit only those clauses of which the testator had knowledge and approval, and the distinction between omitted clauses conferring bequests and those conferring powers, referencing *Osborne v Smith*. The court also addressed issues concerning the production of documents under subpoena and the grounds for redaction based on relevance.
The court analysed the principles established in *Tobin v Ezekiel*, which affirmed that reading a will to a capable testator who executes it is generally sufficient to discharge the onus of proving knowledge and approval. The court clarified that the focus is on whether the testator understood the nature and effect of the document they were signing, and that the act of reading the will to a capable testator, followed by execution, creates a strong presumption of knowledge and approval. The court distinguished between a testator's lack of knowledge of a particular clause and a misunderstanding of its effect, noting that the latter might require a different approach. The court also considered the distinction between a testator's failure to approve of a particular clause and the omission of a clause from the will, which could lead to severance.
The appeal and cross-appeal were dismissed. The appellant, David Lewis, was ordered to pay the costs of the first respondent, Peter Lewis, in respect of both the appeal and the cross-appeal.
Orders
Orders of the court
1. Appeal dismissed.
2. Cross-appeal dismissed.
3. The appellant David Lewis to pay the costs of the first respondent Peter Lewis of the appeal and cross-appeal.