Dybac v Czerwaniw; The Estate of the Late Apolonia Czerwaniw [2022] NSWSC 1279

Supreme Court New South Wales

Medium Neutral Citation: Dybac v Czerwaniw; The Estate of the Late Apolonia Czerwaniw [2022] NSWSC 1279 Hearing dates: 7, 8, 9 & 10 February, and additional submissions to 11 March 2022 Date of orders: 12 September 2022 Decision date: 21 September 2022 Jurisdiction: Equity Before: Slattery J Decision: Declaration made that the January 2020 testamentary is of no effect. Probate of the testatrix's 2005 will and 2009 codicil granted in solemn form to the plaintiff/cross-defendant. Cross-claim is dismissed. Directions made for the determination of issues of costs, should they be contested. Catchwords: PROBATE - TESTAMENTARY CAPACITY – knowledge and approval of a will – in January 2020 the testatrix was to undergo serious surgery – when about to be given preoperative anaesthesia the testatrix seeks to make another will – the doctors attending upon her draft a testamentary document and then witness the testatrix's execution of it – the testatrix's prior wills divided her property equally between her two children, her daughter, the plaintiff/cross-defendant and her son the defendant/cross-claimant – the January 2020 testamentary document gives substantially the whole of her estate to the son – the daughter commences proceedings seeking a declaration of the invalidity of the January 2020 testamentary document and propounding an earlier will and codicil – the defendant/son cross-claims propounding the January 2020 testamentary document as the testatrix's last will – the plaintiff/daughter contends that the testatrix did not have testamentary capacity at the time of executing the January 2020 testamentary instrument and did not know or approve its contents. Legislation Cited: Succession Act 2006 Cases Cited: Bailey v Bailey (1924) 34 CLR 558 Banks v Goodfellow (1870) LR 5 QB 549 Bull v Fulton (1942) 66 CLR 295 Croft v Sanders [2019] NSWCA 303 Gill v Woodall [2011] Ch 380 Hoff v Atherton [2004] EWCA Civ 1554 Lewis v Lewis [2021] NSWCA 168 Mekhail v Hana; Mekail v Hana [2019] NSWCA 197 Nock v Austin (1918) 25 CLR 519 Pates v Craig; The Estate of Cole (28 August 1995, unreported) Re Estate of Griffith: Easter v Griffith (1995) 217 ALR 284 Romano v Romano & Anor [2004] NSWCA 37 Romascu v Manolache [2011] NSWSC 1362 Serwin v Dolso [2020] NSWSC 370 The Estate of Juliana Voros; Cooney & Ors v Cherry [2016] NSWSC 1603 Timbury v Coffee (1941) 66 CLR 277 Tobin v Ezekiel (2012) 83 NSWLR 757 Worth v Clasohm (1952) 86 CLR 439 Zorbas v Sidiropoulous (No 2) [2009] NSWCA 197 Texts Cited: Mason and Handler's Wills, Probate and Administration Service NSW (Butterworths) Category: Principal judgment Parties: Plaintiff: Zina Dybac Defendant: Basil Czerwaniw Estate of the late Apolonia Czerwaniw, late of Schofields Representation: Counsel: Plaintiff: M. Meek SC Defendant: M. Evans