Wechsler v Du Maurier

[2002] NSWCA 13

CITATION:	Katie Wechsler v Michael Du Maurier [2002] NSWCA 13
FILE NUMBER(S):	CA 40059/01
HEARING DATE(S):	11 December 2001
JUDGMENT DATE:	13 February 2002
PARTIES :	Katie Wechsler (Appellant) v Michael Du Maurier (Respondent)
JUDGMENT OF:	Stein JA at 1; Hodgson JA at 44; Foster AJA at 45

LOWER COURT JURISDICTION :	Supreme Court - Equity Division
LOWER COURT FILE NUMBER(S) :	PD 103367/98
LOWER COURT JUDICIAL OFFICER :	Windeyer J

COUNSEL:	D P F Officer QC/J S Mendel (Appellant) P Hallen SC/C F Hodgson (Respondent)
SOLICITORS:	Murphy & Maloney (Appellant) Pricewaterhousecoopers Legal (Respondent)
CATCHWORDS:	SUCCESSION - Wills, probate and administration - the making of a will and codicil - construction and effect of testamentary instrument - failure by testatrix to make sufficient provision for appellant - intention and capacity of testatrix - whether testatrix was affected by a delusion at the time of making the will - false belief not a delusion - ND
LEGISLATION CITED:	n/a
CASES CITED:	Banks v Goodfellow [1870] LR 5 QB 549 Boughton v Knight (1873) LR 3 P&D 64 Bull v Fulton (1942) 66 CLR 295 Easter v Griffith (Unreported, NSWCA 7 June 1995)
DECISION:	Appeal dismissed with costs

CA 40059/01
PD 103367/98
STEIN JA
HODGSON JA
FOSTER AJA


Wednesday, 13 February 2002

Katie WECHSLER v Michael Du MAURIER

The deceased, Gizela Fiala, died on 3 December 1997. She had two daughters, Marika (Mary) Du Maurier and Katie Wechsler (the Appellant). In wills made in January and October 1995, she devised her residual estate in the proportions of 60% to Mary and 40% to Katie. In the October will, the deceased also gave Mary her two-fifths interest in a property in Bankstown. The question put before Windeyer J was whether the testatrix, Mrs Fiala, had testamentary capacity when she executed the will and a codicil thereto. The appellant’s case, which failed before Windeyer J, was that the deceased was suffering from a delusion as to the appellant’s character, and that of her husband Dr Wechsler, and that this had a direct impact on the dispositions in her wills.

The appellant appeals from the decision of Windeyer J, in which his Honour held that the belief of the deceased that the Appellant and her husband had cheated her, or deceived her, or dealt with her improperly was explicable and not a delusion.

Held:

Per Stein JA (Hodgson JA and Foster AJA agreeing):

1. Windeyer J was entitled to conclude that the evidence demonstrated that the deceased was able to properly reflect and consider the claims of those who may have claims on her estate, and to determine in what proportions her property should be divided amongst the claimants.

2. Windeyer J did not misapply the test for delusion in Bull v Fulton (1942) 66 CLR 295. There was ample evidence to enable his Honour to conclude that the false belief which Mrs Fiala held was explicable and that it was not a delusion but in fact a mistaken view;

3. In deciding whether…