Bracher v Jones [2020] NSWSC 1024

Supreme Court New South Wales

Medium Neutral Citation: Bracher v Jones [2020] NSWSC 1024 Hearing dates: 28 October 2019 to 1 November 2019, 13 December 2019, 6 May 2020 Decision date: 05 August 2020 Jurisdiction: Equity Before: Robb J Decision: 1. An order will be made for the revocation of the grant of probate of the deceased's will dated 19 June 2013. 2. An order will be made for the grant of probate of the deceased's will dated 28 June 2010 in solemn form. 3. The parties are directed to confer for the purpose of preparing short minutes of order to give effect to these reasons for judgment and for the determination of the issues considered but not decided. 4. The parties have leave to relist this matter for further consideration of the orders to be made by arrangement with the Associate to Robb J. Catchwords: SUCCESSION — Contested probate — Testamentary capacity — whether deceased was able to comprehend and appreciate the claims to which deceased ought to have given effect — where there is no reliable testimonial evidence concerning the circumstances in which the deceased made their will — where there is an extreme doubt as to the testamentary capacity of the deceased — where the will was made in a cloud of suspicion — where there was an absolute dissonance between the effect of the will and the long-term and continuing relationship between the deceased and the plaintiff — where, in the circumstances in which the will was made, the testator was not capable of withstanding the pressure imposed by others in order to evaluate the strength of the claims — where the deceased had mild cognitive impairment, real short-term memory deficits and was subject to continual mental and emotional stresses — deceased did not have testamentary capacity SUCCESSION — Contested probate — Knowledge and approval — where the testator wrote out the draft will in her own hand — where, in those circumstances, a finding that the testator did not know and approve of the terms of the will in a relevant sense would not be justified SUCCESSION — Contested probate — Undue influence —where, in the probate jurisdiction, undue influence requires something in the nature of coercion in causing the testator to make the will — where, in the actual circumstances, the testator was in fact vulnerable to having her will overborne by incessant demands — where the evidence suggests that the testator, during conferences with solicitors, appeared to emotionally withdraw from the conference — where constant importuning of an old and weakened person, with compromised testamentary capacity, results in the testator effectively abandoning free agency to escape the demands — where no reason can be found in the evidence that explains the abandonment of the testator's long-term testamentary intention — where a conclusion of practical coercion should be reached Legislation Cited: Guardianship Act 1987 (NSW) Succession Act 2006 (NSW) Cases Cited: Bailey v Bailey (1924) 34 CLR 558; [1924] HCA 21 Banks v Goodfellow (1870) LR 5 QB 549 Bridgewater v Leahy (1998) 194 CLR 457; [1998] HCA 66 Carr v Homersham (2018) 97 NSWLR 328; [2018] NSWCA 65 Croft v Sanders [2019] NSWCA 303 Petrovski v Nasev; The Estate of Janakievska [2011] NSWSC 1275 Re Estate of Dowling; Ridge v Rowden (Supreme Court (NSW), Santow J, 10 April 1996, unrep) Read v Carmody [1998] NSWCA 182 Tobin v Ezekiel (2012) 83 NSWLR 757; [2012] NSWCA 285 Wingrove v Wingrove (1885) LR 11 PD 81 Winter v Crichton (1991) 23 NSWLR 116 Category: Principal judgment Parties: Diane Kay Bracher (plaintiff) Stephen Alan Jones (first defendant) Benjamin Stephen Jones (second defendant) Representation: Counsel: L Goodchild (plaintiff) P Bates (defendants)