(a) Probate in solemn form of the Will made on 29 October 2016 of Mabel Claire Hogan be granted to the Plaintiff.
(b) The matter be remitted to the Senior Deputy Registrar in Probate to complete the grant.
(c) The Cross-Claim filed on 5 May 2020 be dismissed.
(d) If the parties are unable to agree on how costs should be borne, the matter is adjourned for directions to 2:00 p.m. on 10 February 2022 or such other date as arranged by the parties and Court.
(e) The Exhibits, with the exception of each original Will, should be dealt with in accordance with the Uniform Civil Procedure Rules and the Court Books may be returned.
Catchwords:
SUCCESSION — Contested probate – Elderly will-maker - Validity of Wills - The Plaintiff is the executor named in the duly executed Will of the deceased made on 29 October 2016 – Last Will of the deceased in time – Alleged lack of testamentary capacity, lack of knowledge and approval, and suspicious circumstances alleged by the Defendants at the time the deceased made the 2016 Will - Whether onus on the Plaintiff, as propounder of the 2016 Will, has been discharged - Agreement of the parties that if the 2016 Will is not the subject of a grant, Probate in solemn form of a Will made by the deceased on 3 May 2013, the penultimate Will, should be made.
Legislation Cited:
Births Deaths and Marriages Registration Act 1995 (NSW)
[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
AGLC
Robertson v Barker [2021] NSWSC 1682
Case
[2021] NSWSC 1682
Decision Date
CaseChat Overview and Summary
The case of Robertson v Barker involves a contest over the validity of a Will made by the deceased on 29 October 2016. The plaintiff, the executor named in the Will, sought to have it admitted to probate. The defendants challenged the Will, alleging that the deceased lacked testamentary capacity, did not have knowledge and approval of the contents, and that suspicious circumstances surrounded its creation. The court was required to determine whether the plaintiff had discharged the onus of proving the Will's validity. Both parties agreed that if the 2016 Will was not admitted to probate, a solemn form grant of the Will dated 3 May 2013 should proceed.
The central legal issues before the court were the deceased's testamentary capacity, the validity of the Will's execution, and whether there were suspicious circumstances affecting its creation. The defendants presented evidence from medical experts and family members suggesting the deceased lacked capacity due to dementia. The plaintiff countered with evidence from the executor and a medical professional who supported the deceased's capacity at the time of making the Will. The court needed to weigh the evidence and determine whether the plaintiff had met the burden of establishing the Will's validity.
In examining the evidence, the court noted that the deceased had a history of dementia but found that there were periods where she demonstrated lucidity and understanding. The court concluded that the plaintiff had discharged the onus of proving the deceased had testamentary capacity at the time of executing the 2016 Will. The court found that the Will was duly executed, and the evidence of suspicious circumstances was insufficient to invalidate it. Consequently, the 2016 Will was admitted to probate.
The court ordered that the 2016 Will be granted probate, and the plaintiff was recognised as the executor. The agreement that the 2013 Will should be admitted to probate in the event the 2016 Will was not granted was rendered moot. The court's decision ensured that the deceased's final wishes, as expressed in the 2016 Will, would be carried out.