Petith v New South Wales Trustee & Guardian; Bone v New South Wales Trustee & Guardian

In the case of Petith v New South Wales Trustee & Guardian; Bone v New South Wales Trustee & Guardian, the court was tasked with determining the validity of various testamentary instruments made by the deceased, as well as adjudicating on claims of undue influence and the entitlement of the deceased’s de facto partner to further provision from the estate. The deceased had executed wills in 2021, 2019, 2018, and 2014, as well as a codicil in 2019. The deceased’s brother contested the 2021, 2019, and 2018 wills, advocating for the grant of probate for the 2014 will, while the de facto partner contested the adequacy of provisions in the later wills.

The primary legal issues before the court included whether the deceased possessed testamentary capacity at the time of making the wills, whether any undue influence was exerted by the de facto partner, and if the de facto partner was entitled to further provision from the estate. The court had to consider the deceased’s medical history, including a history of alcoholism, frequent falls, and chemotherapy, and potential cognitive impairments such as Wernicke Korsakoff encephalopathy syndrome. Additionally, the court needed to assess the validity of the claims for further provision based on the de facto partner’s existing assets and lifestyle.

In its reasoning, the court determined that the deceased did not have testamentary capacity to make the 2021 will and that a copy of the 2019 will should be admitted to probate. The court found no evidence of undue influence in relation to the 2019 will. Regarding the claim for further provision, the court held that a large estate did not justify a blank cheque exercise, considering the de facto partner’s substantial personal assets and lifestyle. The court assessed the evidence as a whole, including contemporaneous materials and lay evidence, to reach its conclusions.

The final orders of the court were that the 2021 will was invalid due to lack of testamentary capacity, a copy of the 2019 will should be admitted to probate, and the de facto partner’s claim for further provision was denied.