Pratt v Estate of O'Sullivan

[2005] NSWSC 1046

CITATION:	Pratt v Estate of O'Sullivan [2005] NSWSC 1046
HEARING DATE(S):	10/10/05
JUDGMENT DATE :	10 October 2005
JURISDICTION:	Equity Division Probate List
JUDGMENT OF:	Young CJ in Eq
DECISION:	Applicant entitled to grant of probate of 1998 will; Matter referred to Registrar to complete grant.

CATCHWORDS:	SUCCESSION [4]- Two wills- Later will made when capacity of testatrix questionable- Need for will to be proved in solemn form and parties adversely affected to be cited- Whether testatrix had capacity at time of making later will.
CASES CITED:	Estate of Talbot (Powell J, 6 April 1992, unreported) In the Goods of Benbow (1862) 2 Sw & Tr 488; 164 ER 1086 Re Grey Smith [1978] VR 596 Re Pearce (1945) 46 SR (NSW) 71
PARTIES:	Craig Pratt (P)
FILE NUMBER(S):	SC 121552/04
COUNSEL:	N Sowaid (S) (P)
SOLICITORS:	Papantoniou & Associates (P)

LOWER COURT JURISDICTION:

IN THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION
PROBATE LIST

YOUNG CJ in EQ

Monday 10 October 2005

121552/04 – CRAIG PRATT v THE ESTATE OF DOROTHY ALBERTA O'SULLIVAN

JUDGMENT

1 HIS HONOUR: Dorothy Alberta O’Sullivan died on 7 April 2004 leaving property in New South Wales.

2 Mrs O’Sullivan made a will on 22 March 1998. That will appointed her grandson, the applicant Craig Pratt, as executor and trustee, and after leaving a life estate to a person now deceased, gave her estate to three of her grandchildren Craig Pratt, Steven Pratt and Leanne Laing in equal shares. She said in her will that the reason why she excluded her grandson James Pratt was that she had given him during her lifetime a block of land in Blacktown which she valued at $80,000. The will was witnessed by Mrs O’Sullivan’s usual solicitor and a secretary in that firm.

3 Were it not for the fact that Mrs O’Sullivan signed another will in the year 2000, there would have been no doubt that the Registrar would have granted probate in common form of that will.

4 Where the court is made aware of the existence of a possible later will, it is not the practice of the court to determine issues of testatory capacity in common form probate proceedings. The applicant needs to prove the will in solemn form citing those adversely affected by not benefiting; see In the Goods of Benbow (1862) 2 Sw & Tr 488; 164 ER 1086 and the Estate of Talbot (Powell J, 6 April 1992, unreported). See also Re Grey Smith [1978] VR 596 where Murphy J in a decision with which I agree, declined to follow Re Pearce (1945) 46 SR (NSW) 71.

5 The applicant has proceeded in that way and has cited James Pratt and Catherine Pratt who are the principal beneficiaries of the 2000 will. James Pratt did not make any response to the citation. Catherine Pratt indicated she did not wish to take any part in the proceedings.

6 The evidence shows that in July 2000 the Guardianship Tribunal made orders with respect to guardianship which expired in 2001 and also for management of Mrs O’Sullivan’s estate. The evidence before the Tribunal showed that she was suffering from mild dementia and had some problems in remembering which members of her family were still alive, and that she suffered from some depression.

7 The mere fact that a person is found by the Guardianship Tribunal to have those disabilities does not necessarily mean that they lack testamentary capacity. However, so where there is no other evidence the court can certainly draw from that evidence an inference of lack of capacity, which might be reinforced by the fact that in response to the citations the persons who might benefit under the 2000 will did not seek to be heard, nor to produce any evidence from the solicitor who seems to have made the 2000 will.

8 On the state of the evidence, it seems to me that I should find that the testatrix did not have sufficient capacity to make the 2000 will and accordingly I should grant probate of the 1998 will, exhibit PX01.

9 Accordingly, I declare that the applicant is entitled to a grant of probate in solemn form of the will which is PX01 and I refer the matter to the Registrar to complete the grant.

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