MULRAY v OGILVY [1991] NSWCA 210

MULRAY vy OGILVY

SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL

MAHONEY, CLARKE JJA and WADDELL AJA 10 October 1990, 12 June 1991

[1991] NSWCA 210

PROBATE — testamentary capacity — testator mistakenly claiming to have no relatives — no other explicit evidence of mental enfeeblement — whole estate left to neighbours who had befriended her — question whether they occupied her mind to exclusion of relatives with whom only minor contact — failure of neighbours to give evidence in support of claim for probate.

Mahoney JA I agree with the judgment of Waddell AJA. Clarke JA I agree with the judgment and reasons of Waddell AJA.

Waddell AJA The late Mrs Gladys Esther Baker of 22 Gardere Avenue, Curl Curl, died on 21 July 1985 aged 81 years. By her will dated 30 October 1984 she appointed the appellant, Kevin Douglas Mulray, a solicitor, and Donald Robert Klingenberg, to be her executors and trustees. The deceased left the whole of her estate to her brother, George Horace Hector Munro, provided he should survive her for one month and failing that to Mr Klingenberg and his wife in equal shares. Mr Munro predeceased the deceased, having died on 31 May 1985 aged 91. The respondent lodged a caveat against any grant of probate of the will. Mr Klingenberg renounced probate and Mr Mulray made an application for probate alone. A direction was given that he should apply for a grant in solemn form.

The deceased was the last survivor of the seven children of her parents. Four of them had no issue. Two had issue who predeceased the deceased. The respondent, June Adele Ogilvy, is a daughter of a brother of the deceased, Charles Eric Munro, who died in 1953. She has five children, two of whom are married and have children of their own. The respondent's sister, Betsy Shirley Osborne, died in 1974 and is survived by four children. Accordingly, at the time of her death, the only relatives of the deceased were the respondent, a niece, and her children and grandchildren, and the children of Mrs Osborne.