Starr v Miller

[2022] NSWCA 46

Court of Appeal

Supreme Court

New South Wales

Medium Neutral Citation:

Starr v Miller [2022] NSWCA 46

Hearing dates:

22 November 2021

Date of orders:

29 March 2022

Decision date:

29 March 2022

Before:

Macfarlan JA at [1];
Meagher JA at [72];
White JA at [73]

Decision:

Appeal dismissed with costs.

Catchwords:

SUCCESSION — contested probate application —whether the deceased had testamentary capacity at the time she gave instructions for and executed the will — whether the deceased knew and approved of the terms of the will — whether deceased’s statement that she was not agreeable to one of her daughters getting any money was a reference to a testamentary gift — whether any “suspicious circumstances”

Legislation Cited:

Succession Act 2006 (NSW)

Cases Cited:

ASIC v Hellicar (2013) 247 CLR 345; [2012] HCA 17

Bailey v Bailey (1924) 34 CLR 558; [1924] HCA 21

Banks v Goodfellow (1870) LR 5 QB 549

Boughton v Knight (1873) LR 3 P&D 64

Drivas v Jakopovic (2019) 100 NSWLR 505; [2019] NSWCA 218

Frizzo v Frizzo [2011] QCA 308

Jones v Dunkel (1959) 101 CLR 298; [1959] HCA 8

Mekhail v Hana; Mekail v Hana [2019] NSWCA 197

Nicholson v Knaggs [2009] VSC 64

Payne v Parker [1976] 1 NSWLR 191

Zorbas v Sidiropoulous (No 2) [2009] NSWCA 197

Category:

Principal judgment

Parties:

Susan Maree Starr (Appellant)
Margo Anne Miller (First Respondent)
David Patrick Brough (Second Respondent)
Bradford Frederick McInnes Stuart (Third Respondent)

Representation:

Counsel:
R D Wilson SC (Appellant)
C Harris SC (Respondents)

Solicitors:
Young & Muggleton (Appellant)
Campbell Paton & Taylor (Respondents)

File Number(s):

2021/159930

Publication restriction:

Nil

 Decision under appeal 

Court or tribunal:

Supreme Court of New South Wales

Jurisdiction:

Equity

Citation:

[2021] NSWSC 426

Date of Decision:

6 May 2021

Before:

Hallen J

File Number(s):

2019/162571; 2020/34748

HEADNOTE

[This headnote is not to be read as part of the judgment]

On 26 May 2018, Ms Nancy Louise Starr (the deceased) died aged 72 years, leaving four adult daughters (Belinda, Margo, Susan and Emma) surviving her. She left an estate with an agreed gross value of $8,674,379. This included substantial rural property interests. By a will dated 16 July 2012 she, in essence, left her principal rural interests and related assets to Margo, with the remainder to be divided equally between her three other daughters.

In the Equity Division proceedings, from which the present appeal is brought, Susan sought revocation of a grant of probate in common form which had been made in respect of the 2012 will. She alleged that the deceased lacked testamentary capacity at the time of executing that will, and that the deceased’s knowledge and approval of the terms of the will were not established. Susan sought probate of an earlier will. In separate proceedings, she also sought further provision out of the estate pursuant to the Succession Act 2006 (NSW).

By a judgment of 6 May 2021 Hallen J granted probate in solemn form of the 2012 will to the executors…