NSW Caselaw
New South Wales Supreme Court
CITATION : Re Estate M.C. Pearce Deceased [2008] NSWSC 1309
HEARING DATE(S) : 14, 24, 25 & 26 November 2008
JUDGMENT DATE : 11 December 2008
JUDGMENT OF : Smart AJ at 1
DECISION : Grant of Probate in solemn form to Kylie Alvaro of the will of M.C. Pearce deceased of 12 October 2001.
CATCHWORDS : Grants in solemn form sought of purported will of 9 December 2006 and as to informal will of 7 December 2006 - Deceased aged 98 - loss of cognitive function due to underlying brain disease - Deceased very ill in hospital and close to death - Combined impact of severe physical illness and loss of cognitive impairment - lack of testamentary capacity - circumstances of suspicion surrounding making of informal will and purported will.
Banks v Goodfellow (1870) 5 QB 549 CASES CITED : Re Estate of Ethel Gertrude Griffith (Deceased), Easter v Griffith & Ors (Unrep. NSWCA, 7 June 1995) Re Estate of P.F. Hodges Deceased (1988) 14 NSWLR 698
PARTIES : Joan Margaret Brodie v Kylie Alvaro- The Estate of Montague Campbell Pearce Kylie Alvaro v Joan Margaret Brodie-The Estate of Montague Campbell Pearce
FILE NUMBER(S) : SC 108563/2008; 101003/2008
COUNSEL : V.R. Gray (J.M. Brodie) J.A.Needham SC (K.Alvaro)
SOLICITORS : Proctor Willaws (J.M.Brodie) Hunt & Hunt (K.Alvaro)
IN THE SUPREME COURT OF NEW SOUTH WALES EQUITY DIVISION PROBATE LIST SMART AJ
11 DECEMBER 2008
108563/2008 Joan Margaret Brodie v Kylie Alvaro-The Estate of Montague Campbell Pearce 101003/2008 Kylie Alvaro v Joan Margaret Brodie-The Estate of Montague Campbell Pearce JUDGMENT 1 Mrs Brodie seeks an order that probate in solemn form of the will dated 9 December 2006 of Montague Campbell Pearce deceased be granted to her or that letters of administration in solemn form with the will dated 7 December 2006 of the deceased be granted to her. Mrs Alvaro challenges both wills on the ground that the late Mr Pearce, then aged 98 and in hospital with a major bleeding problem, lacked testamentary capacity. He died on 10 December 2006 in hospital. Under the documents of 7 and 9 December 2006 the deceased's estate was divided in one sixth shares amongst his daughter, Mrs Brodie, grandchildren, namely, Kathryn Margaret Brodie, Fiona Brodie and Malcolm Andrew Brodie (the children of David Brodie deceased and Joan Margaret Brodie and three of the deceased's grandchildren), Mrs Kylie Alvaro and Rodney Le Lievre (the children of Beverley Ann Le Lievre deceased the younger daughter of M. C Pearce deceased).
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