Order that probate in solemn form be granted to the defendant/cross-claimant, Brian Holliday, in respect of the deceased’s will dated 5 April 2007 and the codicil to that will dated 22 October 2018.
Catchwords:
SUCCESSION – contested probate – validity of codicil propounded by defendant/cross-claimant – codicil provided for defendant/cross-claimant to become sole executor of estate but did not operate to make him a beneficiary of estate – codicil otherwise amended prior will in various respects – whether deceased had testamentary capacity when he signed codicil – whether deceased knew and approved the contents of the codicil he signed – held that, despite a degree of cognitive impairment or deficit, the deceased had testamentary capacity – held further that, despite the deceased having an imperfect understanding of one of the changes effected by the codicil, the deceased should be regarded as knowing and approving of the contents of the codicil – probate granted to defendant/cross-claimant in respect of prior will and codicil
These proceedings concern the estate of the late Roderick Mackinlay (“the deceased”), who died on 19 October 2020 at the age of 91.
The controversy is centred upon the validity of a codicil. The codicil was executed by the deceased on 22 October 2018. It is expressed to be a codicil to a will made by the deceased on 5 April 2007. There is no dispute that the will is valid. However, in relation to the codicil, there are issues as to whether the deceased had testamentary capacity and knew and approved of its contents at the time it was signed.
The will made on 5 April 2007 provides for the deceased’s spouse, Beverley Mackinlay, and the deceased’s son, Derek Mackinlay, to be the executors of the…
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
Mackinlay v Holliday [2023] NSWSC 949
Case
[2023] NSWSC 949
Decision Date
CaseChat Overview and Summary
In the case of Mackinlay v Holliday, the dispute centred on the validity of a codicil to a will, and whether the deceased had testamentary capacity when he signed it. The matter was heard in the Supreme Court of Victoria. The defendant, Holliday, was the proposed executor of the deceased's estate, while the plaintiff, Mackinlay, contested the codicil on the grounds that the deceased lacked testamentary capacity when he signed it and did not understand the full implications of the codicil.
The court was required to determine two main issues: first, whether the deceased had testamentary capacity at the time of signing the codicil, and second, whether the deceased knew and approved the contents of the codicil he signed. The court examined evidence regarding the deceased's cognitive state and whether he understood the changes made by the codicil. The court held that the deceased, despite some degree of cognitive impairment, had testamentary capacity at the time of signing the codicil. It was also determined that, although the deceased had an imperfect understanding of one of the changes effected by the codicil, he should be regarded as knowing and approving of the contents of the codicil.
The court's reasoning was based on the evidence presented regarding the deceased's cognitive state and the understanding of the codicil. The court found that the deceased had the capacity to understand the general nature and effect of the codicil, despite some confusion about specific details. The court concluded that the deceased had testamentary capacity when he signed the codicil and that he knew and approved its contents. As a result, probate was granted to the defendant, Holliday, in respect of the prior will and the codicil.