Mackinlay v Holliday [2023] NSWSC 949

Supreme Court New South Wales

Medium Neutral Citation: Mackinlay v Holliday [2023] NSWSC 949 Hearing dates: 24-28 July 2023 Date of orders: 15 August 2023 Decision date: 15 August 2023 Jurisdiction: Equity Before: Darke J Decision: Order that probate in solemn form be granted to the defendant/cross-claimant, Brian Holliday, in respect of the deceased's will dated 5 April 2007 and the codicil to that will dated 22 October 2018. Catchwords: SUCCESSION – contested probate – validity of codicil propounded by defendant/cross-claimant – codicil provided for defendant/cross-claimant to become sole executor of estate but did not operate to make him a beneficiary of estate – codicil otherwise amended prior will in various respects – whether deceased had testamentary capacity when he signed codicil – whether deceased knew and approved the contents of the codicil he signed – held that, despite a degree of cognitive impairment or deficit, the deceased had testamentary capacity – held further that, despite the deceased having an imperfect understanding of one of the changes effected by the codicil, the deceased should be regarded as knowing and approving of the contents of the codicil – probate granted to defendant/cross-claimant in respect of prior will and codicil Legislation Cited: Evidence Act 1995 (NSW), s 140 Succession Act 2006 (NSW) Cases Cited: Bailey v Bailey (1924) 34 CLR 558 Banks v Goodfellow (1870) LR 5 QB 549 Bear v Bear; Jordan v Bear [2022] NSWSC 1687 Croft v Sanders [2019] NSWCA 303 d'Apice v Gutkovich - Estate of Abraham (No 2) [2010] NSWSC 1333 Drivas v Jakopovic (2019) 100 NSWLR 505; [2019] NSWCA 218 Gibbons v Wright (1954) 91 CLR 423 Gray v Hart [2012] NSWSC 1435 Hobhouse v Macarthur-Onslow [2016] NSWSC 1831 Lewis v Lewis (2021) 105 NSWLR 487; [2021] NSWCA 168 Lim v Lim [2023] NSWCA 84 Mekhail v Hana; Mekail v Hana [2019] NSWCA 197 Osborne v Smith (1960) 105 CLR 153 Tobin v Ezekiel (2012) 83 NSWLR 757; [2012] NSWCA 285 Worth v Clasohm (1952) 86 CLR 439 Category: Principal judgment Parties: Derek Mackinlay (Plaintiff/Cross-Defendant) Brian Holliday (Defendant/Cross-Claimant) Representation: Counsel: Mrs K J Young (Plaintiff/Cross-Defendant) Mr D C Price (Defendant/Cross-Claimant)