Robinson v Spratt [2002] NSWSC 426

New South Wales Supreme Court

CITATION : Robinson v Spratt [2002] NSWSC 426 CURRENT JURISDICTION: Equity Division Probate List FILE NUMBER(S) : SC 101632/00 HEARING DATE(S) : 7, 8, 9 May 2002 JUDGMENT DATE : 16 May 2002

Theresa Mary Robinson (Plaintiff/Cross Defendant) PARTIES : Clarice Rita Lamerton (Plaintiff/Cross Defendant) Audrey Veronica Spratt (Defendant/Cross Claimant) JUDGMENT OF : Windeyer J at 1

COUNSEL : Mr J A Trebeck (Plaintiffs/Cross Defendants) Mr J Millar (Defendant/Cross Claimant) SOLICITORS : Alderdice & Clarke (Plaintiffs/Cross Defendants) Paul A Brown & Co (Defendant/Cross Claimant) CATCHWORDS : WILLS -testamentary capacity - series of wills - no actions of solicitor to determine capacity - testatrix commencing to suffer dementia and abuse of alcohol from 1989 - whether suffient understanding of effect of will - change in proportions of the distribution of the estate Banks v Goodfellow [1870] LR 5 QB 549 CASES CITED : Re Estate of Griffith (deceased) Easter v Griffith (unreported NSWCA 7 June 1995) Timbury v Coffee (1941) 66 CLR 277 DECISION : See paragraphs 44 et seq.

- 4 - IN THE SUPREME COURT OF NEW SOUTH WALES EQUITY DIVISION PROBATE LIST

WINDEYER J

THURSDAY 16 MAY 2002

101632/00 THERESA MARY ROBINSON & ANOR V AUDREY RITA LAMERTON V AUDREY VERONICA SCOTT JUDGMENT Outline 1 Joan Margaret Godfrey (Mrs Godfrey) died on 24 July 1999 aged 80 years. Her husband had pre-deceased her and she had no children. Mrs Godfrey was one of a family of eleven children of whom seven sisters survived her. 2 During her lifetime Mrs Godfrey made a number of wills. Between 1978 and 1995 she made nine wills, although it is not contended she had capacity when she signed the eighth and ninth documents dated 19 September 1994 and 10 March 1995 respectively. 3 The plaintiffs, Mrs Robinson and Mrs Lamerton, who are sisters of the deceased, seek a grant of probate in solemn form of a will dated 4 June 1993. Their sister, Mrs Spratt the defendant, is also an executor named in that will. Mrs Spratt says that the testatrix lacked testamentary capacity to make the will dated 4 June 1993. By cross-claim she seeks probate in solemn form of a will dated 26 November 1990, or a copy thereof, the original having been destroyed. Mrs Spratt and Mrs Robinson and Mrs Lamerton are the executrices named in the 1990 will. Facts 4 Mr Davenport, a partner in Messrs Alderdice and Clarke, solicitors of Chatswood, acted as solicitor for Mrs Godfrey from 1973 at least for most of her legal requirements. He prepared seven of the nine wills I have mentioned. No original wills prior to 1993 are in evidence because Mr Davenport had a practice of destroying a prior will when it was revoked by a new will. 5 A copy of the will made by the deceased on 26 November 1990 is in evidence. It is apparently a photocopy of the will after execution bearing signatures of the deceased and the attesting witnesses. Mr Davenport was an attesting witness and gave evidence of due execution. It is accepted that if it is the last will of the deceased, probate in solemn form of the will as contained in a copy should be granted. If that were the position then the plaintiffs should, I think, be given the opportunity of taking a grant together with the cross-claimant, but it is not necessary to decide that yet. 6 By her 1990 will Mrs Godfrey gave her Wamberal property to Mrs Robinson on trust to pay the outgoings, to allow the property to be used at Mrs Robinson's discretion by the deceased's relatives and friends and, at the end of January 2005, to sell the property and to pay the net proceeds of sale to Erin Haughton, her great-niece, being the granddaughter of her deceased sister, Ruth. The residue of the estate was given to the trustees upon trust to pay legacies of $10,000 to each of Valerie Pike, her niece and Bruce Kilo, the son-in-law of her sister, Dorothy and to pay a legacy of $8,000 to her nephew James Rejek, the son of her sister, Audrey. Clause 4(e) of the will provided for the distribution of the balance of the estate as follows: (e) to hold the balance then remaining upon the following trusts: (i) One share for my sister THERESA MARY ROBINSON. (ii) One half share for my sister DOROTHY CLARE COSTELLO. (iii) One share for my sister AUDREY VERONICA SPRATT . (iii) One share to be divided equally between my nieces MARION THERESE HAUGHTON and VIVIENNE MAREE HAUGHTON to be paid to each of them when she attains the age of twenty-five (25) years. (iv) One quarter of a share to CLARICE RITA LAMERTON (or Twenty thousand dollars ($20,000) whichever is the larger). (v) Three quarters of a share to EILEEN RUBY GALE .