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Starr v Miller

Starr v Miller

Case [2021] NSWSC 426 6 May 2021

Testamentary Capacity

Knowledge and Approval

Family Provision Order

Adequate and Proper Provision

Succession Law

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Supreme Court

New South Wales

Medium Neutral Citation: Starr v Miller; Starr v Miller [2021] NSWSC 426
Hearing dates: 23 – 25 February 2021
2 – 4 March 2021
Date of orders: 6 May 2021
Decision date: 06 May 2021
Jurisdiction: Equity
Before: Hallen J
Decision:
Directs the parties, within 10 days, to provide in hard and soft copy, Short Minutes of Order that reflect these reasons

Catchwords:
SUCCESSION – Contested probate – Lack of testamentary capacity and lack of knowledge and approval asserted – Suspicious circumstances - Application of the test in Banks v Goodfellow – Where deceased suffered a stroke before making Will – Consideration of contemporaneous evidence of solicitor to whom instructions given
SUCCESSION — Alternative claims for family provision order under the Succession Act 2006 (NSW), Ch 3 — Claim by adult daughters of the deceased — Whether adequate and proper provision not made in the Will of the deceased for each applicant and, if so, the nature and quantum of the provision to be made for her

Legislation Cited:
Civil Procedure Act 2005 (NSW)
Evidence (Audio and Audio-Visual Links) Act 1998 (NSW)
Powers of Attorney Act 2003 (NSW)
Succession Act 2006 (NSW)
Uniform Civil Procedure Rules 2005 (NSW)

Cases Cited:
Anasson v Phillips (Supreme Court (NSW), Young J, 4 March 1988, unrep)
Ashkettle v Gwinnett [2013] EWHC 2125 (Ch)
Bailey v Bailey (1924) 34 CLR 558; [1924] HCA 21
Banks v Goodfellow (1870) LR 5 QB 549
Blendell v Byrne & Ors; the Estate of Noeline Joan Blendell [2019] NSWSC 583
Bondelmonte v Blanckensee [1989] WAR 305
Bool v Bool [1941] St R Qd 26, 39
Borebor v Keane (2013) 11 ASTLR 96; [2013] VSC 35
Boughton v Knight (1873) LR 3 P&D 64
Bowditch v NSW Trustee and Guardian [2012] NSWSC 275
Bowyer v Wood (2007) 99 SASR 190; [2007] SASC 327
Boyse v Rossborough (1857) 6 HL Cas 1; (1857) 10 ER 1192
Bramston v Morris; Estate of Sini Sophia Murray (aka Sini Sophia Vecht) (Supreme Court (NSW), 20 August 1993, unrep,)
Brown v Wade [2010] WASC 367
Bryant v Bryant (Supreme Court (NSW), Needham J, 24 July 1986, unrep)
Bull v Fulton (1942) 66 CLR 295; [1942] HCA 13
Burke v Burke (No 2) [2015] NSWCA 195
Camden v McKenzie [2007] QCA 136
Carey v Robson (No 2) [2009] NSWSC 1199
Carr v Homersham (2018) 97 NSWLR 328; [2018] NSWCA 65
Chan v Chan (2016) 15 ASTLR 317; [2016] NSWCA 222
Chapple v Wilcox [2014] NSWCA 392
Chiu Man Fu v Chiu Chung Kwan Ying [2012] HKCFI 82
Christie v Manera [2006] WASC 287
Croft v Sanders [2019] NSWCA 303
Crossman v Riedel [2004] ACTSC 127
D’Apice v Gutkovich; Estate of Abraham (No 2) [2010] NSWSC 1333
Davey v Fairhead (1996) ACL Rep 395 WA 7
Den v Vancleve (1819) 2 Southard
Devereaux-Warnes v Hall (No 3) (2007) 35 WAR 127; [2007] WASCA 235
Dickman v Holley; Estate of Simpson [2013] NSWSC 18
Drivas v Jakopovic (2019)…

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 Starr v Miller

Details

AGLC: Starr v Miller [2021] NSWSC 426
Case: [2021] NSWSC 426
Decision Date: 06 May 2021

CaseChat Overview and Summary

Starr v Miller is a case concerning the validity of a will and claims for family provision under the Succession Act 2006 (NSW). The dispute arose following the death of the deceased, who executed a will shortly before suffering a stroke. The plaintiffs, the deceased's daughters, contested the will's validity, alleging that the deceased lacked testamentary capacity and did not have knowledge and approval of the will's contents. They also made alternative claims for family provision orders under the Succession Act.

The legal issues the court had to decide were whether the deceased had testamentary capacity when executing the will and whether the will reflected the deceased's knowledge and approval. Additionally, the court needed to determine if the daughters were entitled to family provision orders under the Succession Act, considering whether the will made adequate and proper provision for them.

The court applied the test from Banks v Goodfellow, which examines testamentary capacity, considering the deceased's understanding of the nature and effect of making a will and the distribution of the estate. The court examined the circumstances surrounding the will's execution, including evidence from the solicitor who received the instructions. The court found that the deceased had testamentary capacity at the time of making the will and that the will reflected the deceased's intentions. The alternative claims for family provision were dismissed as the will made adequate and proper provision for the daughters.

In summary, the court upheld the validity of the will and dismissed the daughters' claims for family provision.

Orders