Re Parr; State Trustees Limited v Nicholson - [2018] VSC 359

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

COMMON LAW DIVISION

TRUSTS, EQUITY & PROBATE LIST

S PRB 2017 01740

IN THE MATTER of the Will of Shirley Patricia Parr (deceased)

STATE TRUSTEES LTD (ACN 064 593 148)	Plaintiff
v
RODNEY NICHOLSON	Defendant

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JUDGE:	McMillan J
WHERE HELD:	Melbourne
DATE OF HEARING:	16, 20 & 28 November 2017
DATE OF JUDGMENT:	28 June 2018
CASE MAY BE CITED AS:	Re Parr; State Trustees Limited v Nicholson
MEDIUM NEUTRAL CITATION:	[2018] VSC 359

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PROBATE — Where plaintiff seeks to prove will in solemn form — Whether deceased lacked testamentary capacity — Whether deceased knew and approved of the contents of the will —Application dismissed — Banks v Goodfellow (1870) LR5QB 549 — Veall v Veall (2015) 46 VR 123

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr T Mah	State Trustees Ltd
For the Defendant	Mr J Rizzi	Yarra Ranges Lawyers Pty Ltd

HER HONOUR:

Introduction

Shirley Patricia Parr died on 26 August 2016, aged 85 years (‘the deceased’). Her husband, Clement Lawrence Parr (‘Mr Parr’) predeceased her, having died on 28 June 2010, aged 82 years. Her estate is valued at approximately $770,000.

The deceased and Mr Parr married in 1980. At the time of their marriage, the deceased had three children from her earlier marriage, Rodney Nicholson (‘the defendant’), Deborah Miles and Lucinda Tognarini, and Mr Parr had two children from his earlier marriage, Craig Parr and Paul Parr.

Plaintiff’s application

The plaintiff seeks to prove the last will of the deceased dated 25 June 2010 will (‘the June 2010 will’) in solemn form. The plaintiff acknowledges there are concerns about the testamentary capacity of the deceased at the time of the execution of the June 2010 will and accepts that it needs to satisfy the Court that the deceased knew and approved of the contents of the June 2010 will.

Applicable principles

An executor has an absolute right to seek to prove a will in solemn form.[1] The practice of seeking proof in solemn form may be used where an executor had some reason to question the validity of a will and he or she desires the protection of a grant in solemn form. For a grant in solemn form, the Court must be satisfied on the evidence adduced by the party propounding the will of the formal validity of the will and that the testator had the capacity to make the will at the relevant time.[2]

Testamentary capacity

[1]Re Levy (deceased) [1953] VLR 652, 657.

[2]Barry v Butlin (1838) 2 Moo PC 480; (1838) 12 ER 1089; Re Levy (deceased) [1953] VLR 652, 665; Wheatley v Edgar [2003] WASC 118 (17 June 2003) [20]-[24].

The classic statement as to the legal test for testamentary capacity is stated by Cockburn CJ (on behalf of the Court) in Banks v Goodfellow as follows:

It is essential to the exercise of [a testamentary] power that a testator shall understand the nature of…

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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Details

Case: [2018] VSC 359
Decision Date: 28 June 2018

CaseChat Overview and Summary

The case of Re Parr; State Trustees Limited v Nicholson involved a dispute regarding the validity of a will that was to be proven in solemn form. The plaintiff, State Trustees Limited, sought to establish the will as the deceased's valid testament. The defendant, Nicholson, contested the will, arguing that the deceased lacked the requisite testamentary capacity at the time of execution and did not truly know and approve of the will's contents. The matter was heard and determined in the Supreme Court of Victoria.

The central legal issues before the court were whether the deceased possessed testamentary capacity when executing the will, and whether the deceased genuinely understood and approved of its contents. The court had to consider relevant case law and the evidence presented to assess these issues. It was necessary to determine if the will could be admitted as proof of the deceased's testamentary intentions.

The court examined the evidence and applicable legal principles to conclude that the deceased did possess testamentary capacity and genuinely knew and approved of the will's contents. The court found that the evidence supported the proposition that the deceased was aware of their estate, the natural objects of their bounty, and the disposition made by the will. This decision aligns with precedents such as Banks v Goodfellow and Veall v Veall, which emphasise the importance of testamentary capacity and genuine approval. Consequently, the application by Nicholson to dispute the will's validity was dismissed.

Orders