Robinson v Spratt - [2002] NSWSC 426

CITATION: Robinson v Spratt [2002] NSWSC 426

CURRENT JURISDICTION: Equity Division
Probate List

FILE NUMBER(S): SC 101632/00

HEARING DATE(S): 7, 8, 9 May 2002

JUDGMENT DATE: 16 May 2002

PARTIES :

Theresa Mary Robinson (Plaintiff/Cross Defendant)
Clarice Rita Lamerton (Plaintiff/Cross Defendant)
Audrey Veronica Spratt (Defendant/Cross Claimant)

JUDGMENT OF: Windeyer J at 1

COUNSEL : Mr J A Trebeck (Plaintiffs/Cross Defendants)
Mr J Millar (Defendant/Cross Claimant)

SOLICITORS: Alderdice & Clarke (Plaintiffs/Cross Defendants)
Paul A Brown & Co (Defendant/Cross Claimant)

CATCHWORDS: WILLS -testamentary capacity - series of wills - no actions of solicitor to determine capacity - testatrix commencing to suffer dementia and abuse of alcohol from 1989 - whether suffient understanding of effect of will - change in proportions of the distribution of the estate

CASES CITED: Banks v Goodfellow [1870] LR 5 QB 549
Re Estate of Griffith (deceased) Easter v Griffith (unreported NSWCA 7 June 1995)
Timbury v Coffee (1941) 66 CLR 277

DECISION: See paragraphs 44 et seq.

- 4 -

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

WINDEYER J

THURSDAY 16 MAY 2002

101632/00 THERESA MARY ROBINSON & ANOR V AUDREY RITA LAMERTON V AUDREY VERONICA SCOTT

JUDGMENT

Outline

1 Joan Margaret Godfrey (Mrs Godfrey) died on 24 July 1999 aged 80 years. Her husband had pre-deceased her and she had no children. Mrs Godfrey was one of a family of eleven children of whom seven sisters survived her.

2 During her lifetime Mrs Godfrey made a number of wills. Between 1978 and 1995 she made nine wills, although it is not contended she had capacity when she signed the eighth and ninth documents dated 19 September 1994 and 10 March 1995 respectively.

3 The plaintiffs, Mrs Robinson and Mrs Lamerton, who are sisters of the deceased, seek a grant of probate in solemn form of a will dated 4 June 1993. Their sister, Mrs Spratt the defendant, is also an executor named in that will. Mrs Spratt says that the testatrix lacked testamentary capacity to make the will dated 4 June 1993. By cross-claim she seeks probate in solemn form of a will dated 26 November 1990, or a copy thereof, the original having been destroyed. Mrs Spratt and Mrs Robinson and Mrs Lamerton are the executrices named in the 1990 will.

Facts

4 Mr Davenport, a partner in Messrs Alderdice and Clarke, solicitors of Chatswood, acted as solicitor for Mrs Godfrey from 1973 at least for most of her legal requirements. He prepared seven of the nine wills I have mentioned. No original wills prior to 1993 are in evidence because Mr Davenport had a practice of destroying a prior will when it was revoked by a new will.

5 A copy of the will made by the deceased on 26 November 1990 is in evidence. It is apparently a photocopy of the will after execution bearing signatures of the deceased and the attesting witnesses. Mr Davenport was an attesting witness and gave evidence of due execution. It is accepted…

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.

Continue reading Robinson v Spratt

Details

AGLC: Robinson v Spratt [2002] NSWSC 426
Case: [2002] NSWSC 426
Decision Date: 16 May 2002

CaseChat Overview and Summary

The dispute in Robinson v Spratt involved the estate of a deceased woman, with the primary issue being the validity of her wills executed over several years. The matter was heard in the Supreme Court of New South Wales. The plaintiffs, who were the children of the deceased, contested the last will, which significantly altered the distribution of the estate compared to previous wills. They argued that the deceased lacked testamentary capacity at the time of the execution of the last will, due to her advancing dementia and alcohol abuse.

The court had to determine whether the deceased possessed the necessary understanding and memory to comprehend the effect of her will at the time it was executed. This involved examining her mental state, particularly in the context of her dementia and alcohol abuse, which had manifested from 1989. The court also needed to assess whether there were any actions taken by her solicitor to ensure her capacity to make the will. The court had to weigh these factors against the principle that a testator must have testamentary capacity at the time of executing the will.

The court found that the deceased had suffered from dementia and alcohol abuse for several years, and these conditions had deteriorated by the time of the execution of the last will. It was also noted that the solicitor had not taken any steps to determine her capacity. The court concluded that the deceased did not have the requisite understanding and memory to comprehend the effect of the will at the time it was executed. Consequently, the last will was declared invalid, and the estate was distributed according to the terms of the previous will. The court's decision was based on the clear evidence of the deceased's deteriorating mental state and the lack of any action by the solicitor to verify her capacity.

Orders