Robert Church v James Herbert Mason As Executor of the Estate of the Late Marjorie Elaine Mason

[2014] HCASL 174

ROBERT CHURCH

v

JAMES HERBERT MASON AS EXECUTOR OF THE ESTATE OF THE LATE MARJORIE ELAINE MASON

[2014] HCASL 174

S29/2014

1. On 18 October 2009 the applicant's half‑brother died, leaving his entire estate to his half‑sister, Majorie Elaine Mason, by a will dated 14 August 2009. 

2. The applicant sought to challenge the testator's will on the basis that the testator lacked testamentary capacity, and that the "suspicious circumstance" of Ms Mason being instrumental in causing the will to be made in her favour gave rise to a question as to the testator's knowledge and approval of the will.  

3. On 6 December 2012, the Equity Division of the Supreme Court of New South Wales (White J) dismissed the applicant's challenge.  White J held that Ms Mason had discharged the onus of dispelling any concern as to suspicious circumstances, and found that the testator knew and approved of the contents of the will.

4. On 24 December 2013 the Court of Appeal of the Supreme Court of New South Wales (Meagher JA, Barrett and Emmett JJA agreeing) dismissed the applicant's appeal, holding that White J had not erred in his consideration of the facts nor in his conclusion. 

5. The applicant seeks special leave to appeal to this Court, to challenge the finding that the testator knew and approved of the contents of the will.  The applicant enjoys insufficient prospects of success of overturning the concurrent findings of fact to warrant the grant of special leave to appeal.

6. Pursuant to r 41.11.1 we direct the Registrar to draw up, sign and seal an order dismissing the application with costs.

S.M. Kiefel
11 September 2014 P.A. Keane