Kantor & Anor v Vosahlo

[2004] VSCA 235

Victorian Court of Appeal

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Interrogate

Catchwords

1. Wills
2. › Probate
3. › Revocation of grant
4. › Testamentary capacity
5. › Testatrix suffering dementia
6. › Whether will made in lucid interval
7. › Standard of proof
8. › Whether 'heavy onus' correct formulation
9. › Requirement of careful scrutiny and affirmative satisfaction on balance of probabilities
1. Evidence
2. › Standard of proof
3. › Civil proceedings
4. › Briginshaw principle
5. › Whether circumstances requiring careful scrutiny alter the standard of proof or only the process of reaching satisfaction
6. › Whether 'heavy onus' permissible description
1. Wills
2. › Probate
3. › Testamentary capacity
4. › Evidence of solicitor who took instructions
5. › Need for careful scrutiny of lay and medical evidence
6. › Whether trial judge's factual conclusions supported by evidence

Quick Take

The standard of proof for testamentary capacity, even where the testator suffered from dementia and the propounder must establish a lucid interval, remains the civil standard on the balance of probabilities. Expressions such as 'affirmatively satisfied' and 'careful scrutiny' describe the process of reaching satisfaction, not an elevated standard. Describing the onus as 'heavy' is erroneous and may lead to the imposition of an impermissibly high standard. The expression 'satisfied affirmatively' says all that need be said and any further description of the onus can only distract and may mislead.