Lim v Lim

Case [2023] NSWCA 84


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

Veall v Veall (2015) 46 VR 123; [2015] VSCA 60

Worth v Clasohm (1952) 86 CLR 439

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:

Lim v Lim [2022] NSWSC 454

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…

Continue reading Lim v Lim

Sign in free to access the full text

Details
AGLC
Lim v Lim [2023] NSWCA 84
Case
[2023] NSWCA 84
Decision Date

CaseChat Overview and Summary

The appeal in *Lim v Lim* concerned a contested probate of the last will and testament of the late Daisy Ut-Mui Lam. The dispute arose between the executor of the deceased's will and a beneficiary who challenged the validity of the will, alleging a lack of testamentary capacity, specifically a lack of knowledge and approval. The matter was heard by Bell CJ, Kirk JA, and Griffiths AJA in the Court of Appeal of the Supreme Court of New South Wales.

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

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.