New South Wales Supreme Court CITATION : Grace v Franke; Estate Late M L Thomson [1999] NSWSC 1261 CURRENT JURISDICTION : Equity (Probate List) FILE NUMBER(S) : 101198/99 HEARING DATE(S) : 15 December 1999 JUDGMENT DATE : 15 December 1999 PARTIES : Neville Holmes Grace (P) Coral Janette Franke (D) JUDGMENT OF : Hamilton J COUNSEL : A E Rose, Solicitor (P) C Harris (D) SOLICITORS : Church & Grace (P) Conway MacCallum (D) CATCHWORDS : PROCEDURE [115] - Supreme Court procedure - Practice under Supreme Court Rules - Masters - Trial of proceedings referred to a Master by order of a Judge - Circumstances in which reference should be made. ACTS CITED : Supreme Court Rules 1970 Part 60 r 1A(1)(c), Schedule D Part 3 par 4(a) DECISION : Trial of probate suit referred to a Master. THE SUPREME COURT OF NEW SOUTH WALES EQUITY DIVISION HAMILTON J WEDNESDAY, 15 DECEMBER 1999 101198/99 GRACE v FRANKE (ESTATE OF THOMSON) JUDGMENT HIS HONOUR: 1 These are proceedings for testamentary documents to be admitted to probate in solemn form and against opposition. The opposition arises from an allegation that the testator lacked testamentary capacity at the time of the making of one, or more, of the documents. The defendant has put on the evidence of a psychiatrist, Dr Draper, to the effect that the testator's judgment was affected by a psychosis at the time that she made a codicil. The psychosis involved delusions relating to Mrs Franke, who was a beneficiary. 2 Three days are available for the hearing of the matter before Master Macready on 8, 9 and 10 March 2000. Those are the only days available at that time. Unless they are taken, the matter will go into a callover next March, for a fixture later next year before a Judge. The plaintiff consents to the fixture before Master Macready but the defendant opposes this course, on the basis that this is a matter which would usually be tried by a Judge and that Masters are not experienced in dealing with issues such as those arising in this case. 3 It is true that the Masters of this Court do not customarily try probate suits involving testamentary capacity. However, the issue is a comparatively straightforward one. It would appear, certainly to date, there is no psychiatric evidence filed on behalf of the plaintiffs. I am informed by Miss Rose, on their behalf, that the basis on which the case will be fought is lay evidence tending to show no sign of delusions at the relevant time, so that there is no basis for the operation of Dr Draper's opinion. The estate is of the order of $500,000, which is not a large estate in 1999 and still will not be in 2000. Whilst it is true that Masters do not usually try suits of this sort, the Masters in the Equity Division, have extensive experience in the trial of issues between parties. Bearing in mind the comparatively straightforward nature of the issues in this case and the amount of the subject matter, despite the opposition on behalf of the defendant, I propose to make an order referring these proceedings to a Master for trial. I bear in mind, in doing so, that there will be, as in other trial matters, an appeal direct from the Master to the Court of Appeal under Pt 60 r 17, so that an additional appellate step will not be added to the proceedings by my taking this course. 4 The orders that I make are that, pursuant to par 4(a) of Part 3 of Schedule D to the Rules, I refer the trial of these proceedings to a Master to be heard under Part 60 r 1A(1)(c)§. I confirm their fixture before Master Macready for trial on 8, 9 and 10 March 2000. …oOo… Last Modified: 06/26/2000 DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.