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Ocalewicz v Joyce

Ocalewicz v Joyce

Case [2012] NSWSC 1163 28 September 2012

Testamentary Capacity

Probate

Full Faith and Credit

Succession Law

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Supreme Court

New South Wales

Medium Neutral Citation: Ocalewicz v Joyce [2012] NSWSC 1163
Hearing dates: 12 September 2012
Decision date: 28 September 2012
Jurisdiction: Equity Division
Before: Macready AsJ
Decision:
I propose to set aside the grant of probate in common form and I direct the parties to bring in short minutes to give effect to these reasons

Catchwords: TESTAMENTARY CAPACITY - whether order of South Australian Guardianship Board prohibiting deceased from making a will has effect in New South Wales such that grant of probate should be revoked - full faith and credit provision - s 185 Evidence Act (Cth) - in the alternative, whether the deceased lacked testamentary capacity as a matter of fact
Legislation Cited: Crimes Act 1900
Evidence Act 1995 (Cth)
Guardianship Act 1987
Guardianship and Administration Act 1993 (SA)
Guardianship Regulation 2010
Judiciary Act 1903 (Cth)
Succession Act 2006
The Constitution
Cases Cited: An Alleged Incapable Person FCC and the Protected Estates Act 1983, Re (1990) 19 NSWLR 541
Bass v Permanent Trustee Co Ltd (1999) 198 CLR 394
Brandy v HREOC (1995) 183 CLR 245
DEF and the Protected Estates Act 1993, Re [2005] NSWSC 534
EMG v Guardianship and Administration Board of Victoria [1999] NSWSC 501
Harris v Harris [1947] VLR 44
Hernando; Hernando v Sawtell, Re (1884) 27 Ch D 284
Kable v New South Wales [2012] NSWCA 243
PQR and the Protected Estates Act 1983, Re [2005] NSWSC 729
Sweedman v Transport Accident Commission [2006] HCA 8; (2006) 224 ALR 625
Virginie-Pitel v Campbell; Campbell v Virginie-Pitel [2010] NSWSC 1440
Texts Cited: Certoma, The Law of Succession in New South Wales, 4th ed
Nygh's Conflict of Law in Australia, 8th ed
Odgers, Uniform Evidence Law
Victorian Law Reform Commission, Guardianship: Final Report 24, April 2012
Category: Principal judgment
Parties: Mischa Ocalewicz (Plaintiff)
Luise Joyce (Defendant)
Representation: M Pesman with S Neumueller (Plaintiff)
L Ellison SC (Defendant)
C P White & Hetherington (Plaintiff)
Roberts Mann Solicitors (Defendant)

File Number(s): 2011/148679

Judgment

These proceedings, which were commenced by statement of claim filed on 6 May 2011, are ones in which the plaintiff seeks an order revoking a grant of probate to the defendant in respect of the will of his late grandfather. The defendant is a daughter of the deceased and an aunt of the plaintiff.

Background facts

The deceased Michael Ocalewicz died on 25 May 2010 aged 87. Probate of the deceased's will dated 6 August 2008 was granted to the defendant in common form on 23 August 2010.

The deceased's wife Anna Ocalewicz died in July 2007. There were two children of the marriage, the defendant Luise Joyce who was born in 1945 and Lana Ocalewicz who was born in 1958. Each of Lana and Luise have two children. Lana is the mother of the plaintiff and his brother Kiefer Jones. The defendant Luise is the mother of Rosina and Samuel Puchala. I will adopt the practice of the parties in referring to the various parties by their first…

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 Ocalewicz v Joyce

Details

AGLC: Ocalewicz v Joyce [2012] NSWSC 1163
Case: [2012] NSWSC 1163
Decision Date: 28 September 2012

CaseChat Overview and Summary

The dispute in Ocalewicz v Joyce involved the validity of a will, with the respondents seeking to have the grant of probate revoked. The matter was heard in the Supreme Court of New South Wales, specifically in the Equity Division. The deceased, Mr Ocalewicz, had made a will leaving his estate to the first respondent, Ms Joyce, and had also made a statutory declaration in support of his will. The respondents sought to have the grant of probate revoked on the basis that the deceased lacked testamentary capacity at the time he made the will, and that a prior order of the South Australian Guardianship Board prohibiting the deceased from making a will had effect in New South Wales.

The court was required to determine whether the order of the South Australian Guardianship Board had effect in New South Wales, and whether the deceased lacked testamentary capacity as a matter of fact. The court considered whether the full faith and credit provision of section 185 of the Evidence Act (Cth) applied to the order of the South Australian Guardianship Board, and whether the order had the effect of prohibiting the deceased from making a will. The court also considered whether the deceased had the requisite testamentary capacity to make the will, and whether there was evidence to support the conclusion that he lacked capacity.

The court found that the order of the South Australian Guardianship Board did not have effect in New South Wales, as it was not a final order that had been enforced in South Australia. The court also found that the deceased had the requisite testamentary capacity to make the will, and that there was no evidence to support the conclusion that he lacked capacity. The court held that the grant of probate should not be revoked. The court's decision was based on the evidence presented, including medical evidence and the deceased's conduct, which demonstrated that he had the necessary mental capacity to make the will. The court also found that the statutory declaration made by the deceased in support of his will was valid and binding.

In summary, the Supreme Court of New South Wales found that the grant of probate should not be revoked, as the order of the South Australian Guardianship Board did not have effect in New South Wales and the deceased had the requisite testamentary capacity to make the will. The court's decision was based on the evidence presented and the applicable legal principles.

Orders