The Estate of Anable

[2024] NSWSC 579

Supreme Court

New South Wales

• Amendment notes

Medium Neutral Citation:	The Estate of Anable [2024] NSWSC 579
Hearing dates:	10 May 2024
Date of orders:	10 May 2024
Decision date:	10 May 2024
Jurisdiction:	Equity - Succession & Probate List - Probate
Before:	Hammerschlag CJ in Eq
Decision:	Probate granted of first will and declaration made that the testator had testamentary capacity
Catchwords:	SUCCESSION – Probate - Where deceased made two wills and the evidence is that at the time of the second will he lacked testamentary capacity due to Alzheimer’s disease – Although orders were sought by consent the Court must satisfy itself on an evidentiary foundation that there was lack of capacity at the time of the second will and capacity at the time of the first will – HELD: Probate granted of the first will and a declaration made that at the time he made it the testator had testamentary capacity
Cases Cited:	Lucas v Konakas [2014] NSWSC 786
Category:	Principal judgment
Parties:	Aileen Desly Bourke (Plaintiff) Basil Denis Bourke (First Defendant) Garry Allan Anable (Second Defendant)
Representation:	Counsel: D Stewart (Plaintiff) Solicitors: Johnson & Sendall (Plaintiff) Lobban McNally Lawyers (Defendants)
File Number(s):	2022/00048767
Publication restriction:	Nil

EX TEMPORE JUDGMENT (Revised)

1. Bernard Laurin Anable (the Deceased) died between 5 January 2022 and 11 January 2022.

2. Relevantly, he made two homemade wills, one on 24 October 2013 (the First Will) and the other on 10 December 2019 (the Second Will).

3. The Plaintiff, the Deceased’s sister, seeks a grant of probate of the First Will. The Plaintiff also seeks a declaration that the Second Will is invalid as the Will of the Deceased.

4. The Executor appointed under the First Will has died.

5. The Defendants are the named Executors in the Second Will. They do not oppose the grant and submit to the making of all orders sought by the Plaintiff.

6. The estate comprises cash at bank of approximately $642,000, and real property at Bateau Bay, NSW valued at $700,000. There are also some shares worth approximately $31,000.

7. Notwithstanding consent and the absence of a contradictor, it is incumbent on the Court to determine, on an evidentiary foundation and exercising independent judgment, whether the orders should be made: Lucas v Konakas [2014] NSWSC 786 at [259] per Lindsay J.

8. Counsel for the Plaintiff, Mr Stewart, provided comprehensive written submissions dated 23 April 2024 which I have marked MFI-1 and which will be retained with the papers.

9. On the application, the Plaintiff read the following plethora of affidavits:

1. Basil Bourke 24 March 2022, 19 July 2022 and 15 August 20203;

2. Garry Anable 19 July 2022 and 24 March 2022;

3. Aileen Desly Bourke 5 April 2023 and 15 August 2023;

4. David Leonard 30 September 2023;

5. Morris Newton Owen 6 March 2024, 3 April 2024, 26 April 2024 and 30 April 2024; and

6. Kim Michelle Gibbs 23 April 2024.

10. Probate of the Second Will was, correctly, declined by the Registrar, no doubt because there was material calling into question the Deceased’s testamentary capacity at the time.

11. The Deceased was one of 11 children. The Deceased was not married at the time of either Will and has no children. The terms of the Wills differ slightly. It is not necessary to intrude into that matter.

12. Evidence from the Deceased’s treating general practitioner in 2022 is that the Deceased would have struggled to provide informed consent on or about 10 December 2019.

13. The material establishes, to my satisfaction, that, at the time of the Second Will, the Deceased was suffering from Alzheimer’s disease and lacked testamentary capacity. I also find that, at the time of the First Will, the Deceased had testamentary capacity.

14. Every interested person has been given notice of this application. No one seeks to propound the later Will.

15. In the circumstances, I will order that there be a grant of probate of the First Will to the Plaintiff in solemn form and the Court will declare that at the time of that will the Deceased had testamentary capacity, although that conclusion follows for the order for a grant.

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Amendments

28 May 2024 - Updated coversheet to insert catchwords and decision

Decision last updated: 28 May 2024