Petith v New South Wales Trustee & Guardian; Bone v New South Wales Trustee & Guardian [2024] NSWSC 1503

Supreme Court New South Wales

Medium Neutral Citation: Petith v New South Wales Trustee & Guardian; Bone v New South Wales Trustee & Guardian [2024] NSWSC 1503 Hearing dates: 9 – 13, 16 – 17, 19, 20 September 2024 Date of orders: 28 November 2024 Decision date: 28 November 2024 Jurisdiction: Equity Before: Pike J Decision: (1) Direct the parties to confer and seek to agree final orders to give effect to these reasons, including as to costs. (2) Direct the parties to provide any agreed orders, or competing orders, to my Associate by no later than 5pm on 10 December 2024. (3) In the event there is no agreement, including as to costs, direct the parties to provide to my Associate by no later than 5pm on 10 December 2024 any submissions and supporting material, such submissions not to exceed 3 pages. (4) Direct the parties to provide to my Associate by no later than 5pm on 17 December 2024 any submissions and supporting material in reply, such submissions not to exceed 3 pages, whereupon the remaining issues will be determined on the papers. Catchwords: SUCCESSION – testamentary capacity – knowledge and approval – deceased made wills in 2021, 2019, 2018 and 2014 and a codicil in 2019 – where deceased's brother challenges 2021, 2019 and 2018 testamentary instruments and seeks a grant of probate for the 2014 will – where deceased's de facto partner's interest in deceased's estate increased under each testamentary instrument – whether deceased had testamentary capacity – where deceased was a long term alcoholic, suffering the effects of frequent falls, and was undergoing chemotherapy treatment – suggestion of issues with cognition related to Wernicke Korsakoff encephalopathy syndrome by eminent neurologist – onus on propounder of will to prove the deceased had testamentary capacity – where deceased did not have capacity to make the 2021 will – where a copy of the 2019 will should be admitted to probate SUCCESSION – undue influence – whether 2021 or 2019 wills were made as a consequence of undue influence by de facto partner – requirement of actual coercion which must overpower the volition of the deceased – not necessary to consider undue influence in relation to 2021 will where it was found that deceased did not have testamentary capacity - no undue influence found in relation to 2019 will SUCCESSION – claim for further provision by de facto partner – whether deceased adequately provided for the proper maintenance, support and advancement in life of claimant – where claimant has substantial personal assets – whether claimant is entitled to be maintained in the manner to which they were accustomed and expected had the deceased "not gotten cancer and died" – a large estate does not provide a basis for a blank cheque exercise EVIDENCE – where deceased's long term general practitioner is deceased – where deceased's long term lawyer and drafter of testamentary instruments is deceased – where the propounder of will is an interested person – reliance placed on contemporaneous materials including medical history notes, legal file notes, email communications and lay evidence of friends and family of deceased – Court to assess the evidence as a whole to determine testamentary capacity Legislation Cited: Succession Act 2006 (NSW) s 59 Trustee Act 1963 (NSW) s 63 Cases Cited: Alexander v Jansson [2010] NSWCA 176 Anderson v Yongpairojwong [2024] NSWCA 220 Banks v Goodfellow (1871) LR 5 QB 549 Bear v Bear; Jordan v Bear [2022] NSWSC 1687 Briton v Kipritidis [2015] NSWSC 1499 Chant v Curcuruto [2021] NSWSC 751 Dedakis v Deligiannis; The Estate of Rebecca Deligiannis [2024] NSWSC 1018 Dighton v Norwood [2024] NSWSC 318 Eggins v Robinson [2000] NSWCA 61 Grant v Roberts; Smith v Smith; Roberts v Smith; Curtis v Smith [2019] NSWSC 843 In the matter of Gainer Associates Pty Ltd [2024] NSWSC 1138 Lim v Lim [2023] NSWCA 84 Mekhail v Hana [2019] NSWCA 197 Nicholson v Knaggs [2009] VSC 64 Parker v Felgate (1883) 8 PD 171 Pates v Craig & Anor; The Estate of Cole (NSWSC, 28 August 1995, unreported) Petrovski v Nasev; The Estate of Janakievksa [2011] NSWSC 1275 Soulos v Pagones (2023) 416 ALR 181 Tobin v Ezekial (2012) 83 NSWLR 757 Trustee for the Salvation Army (NSW) Property Trust v Becker (2007) 14 BPR 26,867; [2007] NSWCA 136 Van Rensburg v Adilinis [2024] NSWSC 1146 Veall v Veall (2015) 46 VR 123 Zorbas v Sidiropoulous (No 2) [2009] NSWCA 197 Texts Cited: Nil Category: Principal judgment Parties: In proceedings 2021/00364938: Paul Petith (Plaintiff) New South Wales Trustee & Guardian (First Defendant) Steven Rundle Bone (Second Defendant)