Court of Appeal
Supreme Court
New South Wales
Medium Neutral Citation: Lim v Lim [2023] NSWCA 84 Hearing dates: 3 November 2022 Date of orders: 1 May 2023 Decision date: 01 May 2023 Before: Bell CJ at [1]
Kirk JA at [2]
Griffiths AJA at [122]Decision: (1) Appeal allowed.
(2) The orders of the Supreme Court made on 14 April 2022 are set aside, save for the orders dealing with costs, and in lieu thereof:
(a) Declare that the original of the document dated 16 October 2019 in respect of which the Court did, on 28 September 2020, make a grant of probate in common form constitutes the last will and testament of the late Daisy Ut-Mui Lam.
(b) Order that a grant of probate of that will in solemn form be made to the defendant.
(3) The respondent is to pay the appellant’s costs of the appeal.
Catchwords: SUCCESSION — Contested probate — Testamentary capacity — Lack of knowledge and approval — Significant change in nature of will — Suggestion of hepatic encephalopathy — Dispute about deceased’s hearing capacity — Dispute about deceased’s ability to understand Mandarin
EVIDENCE — Standard of proof — Civil cases — Principle in Briginshaw v Briginshaw — Nature and strength of evidence required to establish a fact depends on nature of fact and on context in which fact sought to be proved — No general requirement of a higher degree of satisfaction in cases of contested probate
Legislation Cited: Succession Act 2006 (NSW), Ch 3
Cases Cited: Banks v Goodfellow (1870) LR 5 QB 549
Briginshaw v Briginshaw (1938) 60 CLR 336
Carr v Homersham (2018) 97 NSWLR 328; [2018] NSWCA 65
Croft v Sanders [2019] NSWCA 303
d’Apice v Gutkovich – Estate of Abraham (No 2) [2010] NSWSC 1333
Dickman v Holley [2013] NSWSC 18
Kantor v Vosahlo [2004] VSCA 235
King v Hudson [2009] NSWSC 1013
Lewis v Lewis (2021) 105 NSWLR 487
Mekhail v Hana [2019] NSWCA 197
Neat Holdings Pty Ltd v Karajan Holdings Pty Ltd (1992) 67 ALJR 170; [1992] HCA 66
Nock v Austin (1918) 25 CLR 519; [1918] HCA 73
Qantas Airways Ltd v Gama (2008) 167 FCR 537; [2008] FCAFC 69
Re Estate of Griffith (1995) 217 ALR 284
Simon v Byford [2014] WTLR 1097; [2014] EWCA Civ 280
Tobin v Ezekiel (2012) 83 NSWLR 757; [2012] NSWCA 285
Category: Principal judgment Parties: Sony Ton Yew Lim (Appellant)
Tong Boon Lim (Respondent)Representation: Counsel:
D M Flaherty (Appellant)
D C Price and M Thompson (Respondent)Solicitors:
FKG Law (incorporating Mullick Law) (Appellant)
Glass Goodwin Solicitors (Respondent)
File Number(s): 2022/00134398 Decision under appeal
- Court or tribunal:
- Supreme Court
- Jurisdiction:
- Equity
- Citation:
- Date of Decision:
- 14 April 2022
- Before:
- Hallen J
- File Number(s):
- 2020/00334081
HEADNOTE
[This headnote is not to be read as part of the judgment]
Mrs…
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- AGLC
- Lim v Lim [2023] NSWCA 84
- Case
- [2023] NSWCA 84
- Decision Date
CaseChat Overview and Summary
The central legal issues before the Court of Appeal were whether the deceased possessed the necessary testamentary capacity, knowledge, and approval of her will dated 16 October 2019, and whether the Supreme Court had erred in its assessment of the evidence. The challenge to the will was based on allegations of hepatic encephalopathy, impaired hearing, and an inability to understand Mandarin, which were argued to have affected the deceased's capacity to understand the nature and effect of her will.
The Court of Appeal applied the principles established in *Briginshaw v Briginshaw* regarding the standard of proof in civil cases, noting that while contested probate cases require careful consideration of evidence, there is no general requirement for a higher degree of satisfaction than that which obtains in civil cases generally. The Court found that the evidence did not support the conclusion that the deceased lacked the requisite knowledge and approval of her will. Consequently, the appeal was allowed, the previous orders of the Supreme Court were set aside (except for costs), and a declaration was made that the document dated 16 October 2019 constituted the deceased's last will and testament, with a grant of probate in solemn form ordered. The respondent was also ordered to pay the appellant's costs of the appeal.
Orders
Orders of the court
(1) Appeal allowed.
(2) The orders of the Supreme Court made on 14 April 2022 are set aside, save for the orders dealing with costs, and in lieu thereof:
(a) Declare that the original of the document dated 16 October 2019 in respect of which the Court did, on 28 September 2020, make a grant of probate in common form constitutes the last will and testament of the late Daisy Ut-Mui Lam.
(b) Order that a grant of probate of that will in solemn form be made to the defendant.
(3) The respondent is to pay the appellant’s costs of the appeal.
Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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