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
[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.
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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.