Hobhouse v Macarthur-Onslow [2016] NSWSC 1831

Supreme Court New South Wales

Medium Neutral Citation: Hobhouse v Macarthur-Onslow [2016] NSWSC 1831 Hearing dates: 18 – 21 April 2016 and 13 July 2016 Decision date: 16 December 2016 Jurisdiction: Equity Before: Robb J Decision: (1) The parties are directed to bring in short minutes of order to give effect to these reasons for judgment in accordance with par 639.

(2) The parties are invited to make submissions on the costs order that should be made by the court Catchwords: SUCCESSION – wills, probate and administration – testamentary instruments – wills – deceased died leaving two wills – the 1988 will divided estate almost equally between two adult children, being the plaintiff and first defendant, while the 2004 will had the effect of giving the first defendant control of the exercise of the discretion of the trustee of a family discretionary trust that would permit the first defendant to distribute a substantial portion of the property controlled by the deceased as he saw fit, including to himself – deceased suffered from moderate dementia leading up to the making of the 2004 will – plaintiff sought grant of probate of 1988 will – cross claimants sought grant of probate of 2004 will –plaintiff alleged lack of testamentary capacity by the deceased and lack of knowledge and approval of the deceased in relation to 2004 will – principles relevant to testamentary capacity and absence of knowledge and approval of contents of will by a testator with a cognitive disability considered – held testator had testamentary capacity – held testator did not by reason of her cognitive disability sufficiently know and approve of the terms of the 2004 will that gave the first defendant control of the trustee of the family discretionary trust to justify those terms being included in the will admitted to probate – held that the 2004 will should be admitted into probate with those terms excised