NSW Caselaw
New South Wales Supreme Court
CITATION : d'Apice v Gutkovich - Estate of Abraham (No. 2) [2010] NSWSC 1333
HEARING DATE(S) : 25, 26, 27 & 28 October 2010
JUDGMENT DATE : 22 November 2010
JURISDICTION : 2009/300599
JUDGMENT OF : White J
DECISION : 1. Order that probate of the will in solemn form of Irene Abraham made on 3 December 2004 be granted to the plaintiff; 2. order that the proceedings be referred to the Registrar to complete the grant; 3. order that the claims in paragraphs 2, 3 and 4 under the heading "Relief Claimed" in the further amended statement of claim be dismissed; 4. order that the cross-claim be dismissed; 5. order that the costs of the plaintiff on the indemnity basis be paid out of the assets of the estate; 6. The exhibits are to be dealt with in accordance with Part 51, rr 51.24 and 51.43 of the Uniform Civil Procedure Rules.
CATCHWORDS : WILLS PROBATE AND ADMINISTRATION – application for grant of probate – whether deceased had testamentary capacity – where deceased made multiple wills – where deceased suffered from dementia and revoked testamentary gift to carer and close companion – where revocation due to deceased's belief that carer stole from deceased – testamentary capacity required for revocation of gift – whether deceased able to appreciate and weigh claim of carer on estate
LEGISLATION CITED : Guardianship Act 1987 (NSW)
CATEGORY : Principal judgment
Banks v Goodfellow (1870) LR 5 QB 549 Read v Carmody (Court of Appeal, 23 July 1998, unreported); BC9803374 Re Estate of Paul Francis Hodges deceased; Shorter v Hodges (1988) 14 NSWLR 698 Kerr v Badran [2004] NSWSC 735 Zorbas v Sidiropoulous (No 2) [2009] NSWCA 197 CASES CITED : Public Trustee v Elderfield & Anor; Re Estate of Poole (Supreme Court of New South Wales, Young J, 26 April 1996, unreported) Hay v Simpson (1890) 11 LR (NSW) Eq 109 Re Estate of Griffith (dec'd); Easter v Griffith (1995) 217 ALR 284 Plunkett v Bull [1915] HCA 14; (1915) 19 CLR 544 Perpetual Trustee Company Ltd v Fairlie-Cunninghame (1993) 32 NSWLR 377 Worth v Clasohm (1952) 86 CLR 439
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