WILLS - Testamentary capacity; apparent intelligcnce; whether nonetheless delusional belief as to claims on bounty; distinction from mistaken belief; costs of successful appeal; whether out of estate.
(1) Appeal upheld; (2) Order of Bennett AJ 9 May 1997 set aside); (3) Order probate of the last will and testament of Mary Victoria Tompson 19 August 1993 in solemn form be granted to Perpetual Trustee Company Limited ACN 000 001 007; (4) Order appellant's costs and respondent's costs on a trustee basis, of the trial before Bennett AJ be paid paid out of the estate; (5) By majority the order of the Court will be that the appellant's and the respondent's costs of the appeal be paid out of the estate of the deceased, in the case of the appellant on a trustee basis.
THE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL CA 40320/97 CL 109704/95
GILES JA COLE AJA BROWNIE AJA
Friday, 16 July 1999
PERPETUAL TRUSTEE COMPANY LIMITED v Peter BAKER
JUDGMENT
1 GILES JA AND BROWNIE AJA: The issue to be decided is whether the deceased had testamentary capacity when she made her last will on 19 August 1993.
2 The relevant principles are not in issue. It is sufficient to set out a passage from the judgment of Gleeson CJ, with whom Handley JA agreed, in Re Griffith, Easter v Griffith , NSWCA, 7 June 1995, unreported, at 10 to 13 -
“Where the evidence in a suit for probate raises a doubt as to testamentary capacity, there…
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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AGLC
Perpetual Trustee v Baker [1999] NSWCA 244
Case
[1999] NSWCA 244
Decision Date
CaseChat Overview and Summary
The New South Wales Court of Appeal considered an appeal concerning the testamentary capacity of the deceased, Mary Victoria Tompson. The appellant, Perpetual Trustee Company Limited, sought to admit the deceased's last will and testament dated 19 August 1993 to probate in solemn form, against the opposition of the respondent.
The central legal issue before the Court was whether the deceased possessed the necessary testamentary capacity at the time of executing her will, specifically whether a delusional belief held by the deceased regarding claims on her bounty rendered her incapable of making a valid will, notwithstanding apparent intelligence. The Court was required to distinguish between a delusional belief and a mistaken belief in this context.
The Court, by majority, found that the deceased did possess the requisite testamentary capacity. It reasoned that while the deceased held a belief that was not based on fact, this belief did not amount to a delusion in the legal sense that would prevent her from understanding the nature and effect of her will or the extent of her property and the claims of potential beneficiaries. The Court distinguished this from a mistaken belief, which does not necessarily vitiate testamentary capacity. Consequently, the appeal was upheld, and the previous order of Bennett AJ was set aside. The Court ordered that probate of the 1993 will be granted to the appellant. Furthermore, the Court ordered that the costs of both the trial and the appeal, for both the appellant and the respondent, be paid out of the deceased's estate, with the appellant's costs on a trustee basis.
Orders
Orders of the court
(1) Appeal upheld; (2) Order of Bennett AJ 9 May 1997 set aside); (3) Order probate of the last will and testament of Mary Victoria Tompson 19 August 1993 in solemn form be granted to Perpetual Trustee Company Limited ACN 000 001 007; (4) Order appellant's costs and respondent's costs on a trustee basis, of the trial before Bennett AJ be paid paid out of the estate; (5) By majority the order of the Court will be that the appellant's and the respondent's costs of the appeal be paid out of the estate of the deceased, in the case of the appellant on a trustee basis.