Perpetual Trustee v Baker

Case [1999] NSWCA 244


CITATION: Perpetual Trustee v Baker [1999] NSWCA 244
FILE NUMBER(S): CA 40320/97
HEARING DATE(S): 21/06/99
JUDGMENT DATE:
16 July 1999

PARTIES :


Perpetual Trustee Company Ltd (Appellant)
Peter Baker (Respondent)
JUDGMENT OF: Giles JA at 1; Brownie AJA at 1; Cole AJA at 17
LOWER COURT JURISDICTION: Supreme Court
LOWER COURT FILE NUMBER(S) : CL109704/95
LOWER COURT JUDICIAL OFFICER: Bennett AJ
COUNSEL: Mr D.P.P Officer &
Ms D. Stewart (Appellant)
Mr P. Hallen (Respondent)
SOLICITORS: Gadens (Appellant)
Teece Hodgson & Ward (Respondent)
CATCHWORDS: 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.
ACTS CITED: Wills, Probate and Administration Act 1898
Suitors Fund Act
Credit Act 1984
Hire Purchase Agreements Act
CASES CITED:
Re Griffith, Easter v Griffith NSWCA 7 June 1995 unreported at 10-13
Banks v Goodfellow (1870) LR 5 QB 549 at 563
In the estate of Hodges: Shorter v Hodges (1988) 14 NSWLR 698 aT 709
In the estate of Moyle: Moyle v Moyle (Santow J, 18 June 1988, unreported)
Davies v Gregory (1873) 3 P & D 28
Roe v Nix (1893) P 55
In the will of Millar (1908) VLR 682)
In the will of Sivers (1887) 13 VLR 572
Phillips v Dundas (Smith J VSC 4 December 1995, unreported)
Redroff v Miegoch (Santow J, NSWSC 22 April 1996, unreported)
re Ryan: Williams v Ryan (1998) VSC 109
In the will of Ryan: Williams v Ryan (Byrne J VSC, 23 October 1998, unreported)
cf Middlebrook v Middlebrook (1963) 26 ALJR 216
Browne v M'Encroe (1890) 11 NSWLR Eq. 134 at 146.
DECISION: (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…

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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.

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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