Wild v Meduri

Case [2024] NSWCA 230


Court of Appeal


Supreme Court


New South Wales

Medium Neutral Citation: Wild v Meduri [2024] NSWCA 230
Hearing dates: 17-19 October 2023
Date of orders: 26 September 2024
Decision date: 26 September 2024
Before: Bell CJ at [1];
White JA at [281];
Kirk JA at [333]
Decision:

Proceedings 2023/93737

Appeal be dismissed with costs.

Proceedings 2023/93752

Appeal be dismissed with costs.

Catchwords:

SUCCESSION – contested probate – testamentary capacity – lack of knowledge and approval – where primary judge’s findings were predicated upon his view of the credibility of the witnesses assessed in the context of the whole body of evidence including contemporaneous medical records and the views of joint experts – Fox v Percy – where lay evidence was diametrically opposed – where no contemporaneous file notes made by the solicitor who prepared the will

LEGAL PRACTITIONERS – solicitors – whether the primary judge erred in his assessment of the evidence of the solicitor who prepared the will on the basis that the solicitor was also the solicitor on record for the Respondents – where the primary judge held that the solicitor should have ceased to act earlier than he did

APPEALS – from findings of fact – inferences from primary facts – Jones v Dunkel inference – where a witness swore affidavits in support of the Respondents’ case but was not called by the Respondents – where the witness was called by the Appellant but did not appear and a bench warrant was not issued – whether it was natural to expect the witness to have been called – where the witness was a family member with mental health issues and associated vulnerability

EVIDENCE – witness evidence – affidavits – use of direct speech to recount past conversations of which a witness recalls only the gist – where direct speech is prefaced with the phrase “words to the following effect”

ESTOPPEL – equitable estoppel – estoppel by encouragement – proprietary estoppel – estoppel by acquiescence – where primary judge’s findings as to estoppel expressed in the alternative and as a contingency – no issue of principle

Legislation Cited:

Civil Procedure Act 2005 (NSW) ss 29, 61-62

Evidence Act 1995 (NSW) ss 55, 76, 78, 135 140

Supreme Court Act 1970 (NSW) ss 75A, 101

Legal Profession Uniform Law Australian Solicitors’ Conduct Rules 2015 (NSW) r 27

Uniform Civil Procedure Rules 2005 (NSW) rr 2.1, 2.3(k), 31.1

Cases Cited:

Allstate Life Insurance Co v Australia New Zealand Banking Group Ltd (No 5) (1996) 64 FCR 73

Attwell v Morgan [2019] WASC 182

Australian Competition and Consumer Commission v BlueScope Steel Ltd (No 3) [2021] FCA 1147; (2021) 157 ACSR 77

Banks v Goodfellow (1870) LR 5 QB 549

Bathrick v Detroit Post and Telegraph Co, 50 Mich 629, 637; 16 NW 172, 175 (1883)

BM Sydney Building Materials Pty Ltd v AWT Building Group (Aust) Pty Ltd [2019] NSWSC 421

Briginshaw v Briginshaw (1938) 60 CLR 336; [1938] HCA 34

Carr v Homersham (2018) 97 NSWLR 328;

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AGLC
Wild v Meduri [2024] NSWCA 230
Case
[2024] NSWCA 230
Decision Date

CaseChat Overview and Summary

The appeal concerned a contested probate, with the primary judge having found that the deceased lacked testamentary capacity, specifically knowledge and approval of the will. The court was required to determine whether the primary judge erred in his assessment of the evidence, particularly the credibility of witnesses, in light of contemporaneous medical records and expert opinions. The appeal also raised questions regarding the conduct of the solicitor who prepared the will and whether the primary judge erred in his assessment of that solicitor's evidence, given the solicitor was also acting for the respondents.

The court considered whether the primary judge had made a permissible inference under *Jones v Dunkel* concerning a witness who had provided affidavits but was not called by the respondents. The court also examined the use of direct speech in affidavits, where past conversations were recounted with the preface "words to the following effect," and whether this constituted admissible evidence. Furthermore, the court addressed findings made by the primary judge regarding equitable estoppel, proprietary estoppel, and estoppel by acquiescence, which were expressed in the alternative.

The primary judge's findings on testamentary capacity were based on a comprehensive assessment of witness credibility, viewed in the context of all the evidence, including medical records and expert views. The court found no error in the primary judge's assessment of the solicitor's evidence, noting that the solicitor's dual role did not automatically vitiate his evidence. The court also determined that the *Jones v Dunkel* inference was not applicable in the circumstances of the uncalled witness, who had significant mental health issues. The findings on estoppel were considered to be contingent and did not raise any issues of principle.

The appeals were dismissed with costs.

Orders

Orders of the court

Proceedings 2023/93737

Appeal be dismissed with costs.

Proceedings 2023/93752

Appeal be dismissed with costs.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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