Estate Sue [2016] NSWSC 721

Supreme Court New South Wales

Medium Neutral Citation: Estate Sue [2016] NSWSC 721 Hearing dates: 23, 24 and 25 May 2016 Date of orders: 07 June 2016 Decision date: 07 June 2016 Jurisdiction: Equity - Probate List Before: Lindsay J Decision: (1) ORDER that the grant of probate made to the defendant, in respect of the deceased's 2012 will, be revoked.

(2) ORDER that probate of the deceased's 2000 will be granted to the plaintiff.

(3) ORDER that the proceedings be referred to the Registrar to complete the grant.

(4) DIRECT that, subject to further orders of the Court, the plaintiff produce to the Registrar, prior to completion of the grant, evidence of due execution of the 2000 will. Catchwords: SUCCESSION – Making of a will – Testamentary capacity – Soundness of mind, memory and understanding – Ability of deceased to comprehend and appreciate claims on her estate and weigh the relative claims of those who may have had a claim.

SUCCESSION – Wills, Probate and Administration – Probate and letters of administration – Practice – New South Wales – Form of grant – Distinction between grant in common form and grant in solemn form – Practical operation of the distinction Legislation Cited: Mental Health Act 2007 NSW Succession Act 2006 NSW Cases Cited: Bailey v Bailey (1924) 34 CLR 558 Banks v Goodfellow (1870) LR 5 QB 549 Bull v Fulton (1942) 66 CLR 295 Burnside v Mulgrew [2007] NSWSC 550 Estate Kouvakis; Lucas v Konakas [2014] NSWSC 786 Estate Kouvakis [2014] NSWSC 786 at [230]-[233] and [275]-[283] King v Hudson [2009] NSWSC 1013 Osborne v Smith (1960) 105 CLR 153 at 158-159 Re Estate of Hodges, Shorter v Hodges (1988) 14 NSWLR 698 Re Estate of Wai Fun Chan, deceased [2015] NSWSC 1107 Riccardi v Riccardi.[2013] NSWSC 1655 at [9](a)-(b) Sullivan v Mouglalis [2008] NSWSC 1326 Timbury v Coffee (1941) 66 CLR 277 Woodheard v Perpetual Trustee (1987) 11 NSWLR 267 Woodley-Page v Symons (1987) 217 ALR 25 Worth v Clasohm (1952) 86 CLR 439 Texts Cited: Diagnostic and Statistical Manual of Mental Disorders (DSM-5, 5th edition) Category: Principal judgment Parties: Plaintiff/Cross Defendant: Jay Lily Harwood (daughter of deceased) First Defendant/Cross Claimant: David Channon Walker (Executor/brother of deceased) Second Defendant/Cross Claimant: Christopher Channon Walker (Executor/brother of deceased) Representation: Counsel: Plaintiff/Cross Defendant: J Needham SC and N Simpson Defendants/Cross Claimants: L Ellison SC