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Romascu v Manolache

Romascu v Manolache

Case [2011] NSWSC 1362 12 December 2011

Testamentary Capacity

Execution of Wills

Revocation of Wills

Succession Law

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Supreme Court

New South Wales

Medium Neutral Citation: Romascu v Manolache [2011] NSWSC 1362
Hearing dates: 9, 10 November 2011
Decision date: 12 December 2011
Jurisdiction: Equity Division - Probate List
Before: Hallen AsJ
Decision:
Order that:
(a) Letters of administration with the deceased's Will made on 6 May 2009 annexed in solemn form be granted to the Plaintiff;
(b) The matter be referred to the Registrar to complete the grant;
(c) The Cross-Claim be dismissed;
(d) If the parties are unable to agree on the burden of costs, the matter is adjourned for argument;
(e) With the exception of each original Will, the exhibits should be dealt with in accordance with the Uniform Civil Procedure Rules and the Court Books may be returned.

Catchwords: The deceased made two wills during her lifetime, the first in May 2009 and the last in December 2009 - No dispute that the May Will was duly executed and otherwise valid - Sole issue whether December Will valid and should be admitted to probate - If valid, it revoked the May Will - Central questions concerning the validity of the December Will, are whether the deceased validly executed that Will; whether she had testamentary capacity and whether the deceased knew and approved of the December Will - Undue influence also alleged but not relied upon at the hearing
Legislation Cited: Family Provision Act 1982
Succession Act 2006
Supreme Court Rules 1970
Uniform Civil Procedure Rules 2005
Cases Cited: Alvaro, In the Estate of; (deceased); Public Trustee v Alvaro (1995) 182 LSJS 383; [1995] SASC 5183
Bailey v Bailey (1924) 34 CLR 558
Banks v Goodfellow [1870] LR 5 QB 549
Battan Singh v Amirchand [1948] AC 161
Bool v Bool [1941] St R Qd 26
Boughton v Knight (1873) LR3 P&D 64
Brown v Wade [2010] WASC 367
Bull v Fulton (1942) 66 CLR 295
England, In the Will of (1900) 22 ALT 86
Edwards v Boyd (1958) 75 WN (NSW) 525
Fradgley v Pocklington (No 2) [2011] QSC 355
Friesen and Holmberg v Friesen Estate (1985) 33 Man R (2d) 98
Frizzo v Frizzo [2011] QCA 308
Griffith, Re; Easter v Griffith (1995) 217 ALR 284
Hodges, Re; Shorter v Hodges (1988) 14 NSWLR 698
Hoff v Atherton [2005] WTLR 99
Jolley v Jarvis [1964] P 262
In the Estate of Kirs (1990) 55 SASR 61
Key v Key [2010] EWHC 408; [2010] All ER 155
King v Hudson [2009] NSWSC 1013
Kovacs v Public Trustee [2006] SASC 1
Kuhl v Liebcheschel [1933] SASR 394
Levy, Re [1953] VLR 652
Manning v Hughes; Estate of Ludewig [2010] NSWSC 226
Munn, In re [1943] SASR 304
Nicholson v Knaggs [2009] VSC 64
Nock v Austin (1918) 25 CLR 519
Oakes v Uzzell [1932]
Osborne v Smith [1960] HCA 89; (1960) 105 CLR 153
Palin v Ponting [1930] P 185
Parton v Johnson (1868) LR 1 P and D 549
Pates v Craig; The Estate of Cole (NSWSC, 28 August, 1995, unreported)
Perrins v…

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 Romascu v Manolache

Details

AGLC: Romascu v Manolache [2011] NSWSC 1362
Case: [2011] NSWSC 1362
Decision Date: 12 December 2011

CaseChat Overview and Summary

The case of Romascu v Manolache involved a dispute over the validity of two wills executed by a deceased woman, the first in May 2009 and the second in December 2009. The central issue was whether the December will was valid and should be admitted to probate, as it would revoke the earlier will if valid. The court had to determine whether the deceased validly executed the December will, whether she had testamentary capacity at the time, and whether she knew and approved of the contents of that will. The question of undue influence was also raised but was not pursued during the hearing.

The primary legal issues before the court were the validity of the December will and the criteria for its admission to probate. The court needed to assess if the deceased had the requisite testamentary capacity when she executed the December will, if the will was properly executed, and if she understood the contents of the will and approved it. The court also considered the relevance of the earlier, undisputed will executed in May 2009.

The court determined that the December will was valid and should be admitted to probate. The deceased had testamentary capacity and had validly executed the will. The court found that she understood and approved of the contents of the will, and the evidence did not support a claim of undue influence. Consequently, the December will was held to be valid and revoked the earlier will. The court's reasoning was based on the evidence presented regarding the deceased's mental state and her understanding of the will's contents, as well as the lack of evidence supporting undue influence.

The final orders of the court were that the December will be admitted to probate and the earlier will was revoked. The court recognised the December will as the valid testamentary document, thereby resolving the dispute between the parties. The court's decision was grounded in its assessment of the evidence and the legal criteria for the validity of a will.

Orders