Dellios v Dellios [2012] NSWSC 868

Supreme Court New South Wales

Medium Neutral Citation: Dellios v Dellios [2012] NSWSC 868 Hearing dates: 18-20 July 2012 Decision date: 20 July 2012 Before: White J Decision: Refer to paras [95], [97] and [102] of judgment. Catchwords: WILLS, PROBATE AND ADMINISTRATION - wills - testamentary capacity - whether deceased lacked testamentary capacity at time of making will - consideration of deceased's history of mental illness - where deceased suffered schizophrenia - whether deceased understood nature of act of making a will and its effect - deceased's failure to comprehend and appreciate claims to which she ought to give effect - onus remains with person propounding will to establish deceased had testamentary capacity - held onus not discharged

WILLS, PROBATE AND ADMINISTRATION - wills - construction of will - duties of solicitor - unsatisfactory way in which instructions for will were obtained - will prepared prior to having obtained instructions from deceased - will instructions provided by beneficiary of will - solicitor asked leading question of the deceased, translated to Macedonian by family members - no knowledge whether questions were accurately translated to deceased and deceased's answers accurately conveyed - undesirable that confirmation of will instructions obtained in presence of family members

WILLS, PROBATE AND ADMINISTRATION - letters of administration - appointment of administrator - whether plaintiff would be fit and proper person to be appointed as administrator - majority of those entitled on intestacy seek appointment of defendant as executor Legislation Cited: Family Provision Act 1982 Probate and Administration Act 1898 Cases Cited: Pates v Craig and Anor; In the Estate of Cole (Supreme Court of New South Wales, Santow J, 28 August 1995, unreported BC9505250) Petrovski v Nasev (No. 2); The Estate of Janakievska [2011] NSWSC 1275 Banks v Goodfellow (1870) LR 5 QB 549 Texts Cited: Hutley's Australian Will Precedents, 7th ed, 2009 LexisNexis Butterworths Category: Principal judgment Parties: Chris Dellios (Plaintiff) John Dellios (Defendant) Representation: Counsel: L Ellison SC (Plaintiff) J Needham SC with A Lakeman (Defendant) Solicitors: Roberts Mann Solicitors (Plaintiff) Bilbie Dan (Defendant) File Number(s): 2009/289795