SUCCESSION — Wills and Estates — testatrix devises real property to defendant sons — plaintiff daughters contest capacity of testatrix at time of preparing and making will — legal onus on defendants to establish testatrix freely and capably executed will — evidential onus on plaintiffs to rebut presumption of capacity — at time of execution will was rational on its face — medical evidence and evidence of persons who observed testatrix at time of preparation and execution do not raise doubts as to capacity — held: testatrix was of sound mind, memory and understanding at time of executing will.
SUCCESSION — Wills and Estates — whether will procured by undue influence — burden of establishing undue influence falls on party impugning the will — necessity to establish will of the testatrix was overborne — circumstantial evidence — undue influence must be more probably than not the explanation for the will — burden of proof to the Briginshaw standard — undue influence said to be inferred from: change in former testamentary position of equality amongst four children of testatrix; involvement of defendant sons in execution of the will; testatrix's vulnerability to defendant son; failure and irregularities of legal protections surrounding preparation and execution of the will by a solicitor; and dishonesty of defendants in giving evidence to the court — held: most probable explanation of circumstantial evidence is not coercion of testatrix's will.
SUCCESSION — Wills and Estates — plaintiffs contend that notwithstanding failure to establish defence of undue influence there were sufficient circumstances of suspicion to cast onus on defendants to establish testatrix's knowledge and approval of will — proponent of will generally bears onus to establish testator knew and approved contents — knowledge and approval usually satisfied by proving testamentary capacity and due execution of will — suspicion of undue influence not a relevant suspicion in removing presumption of knowledge and approval — held: testatrix knew and approved the contents of the will.
SUCCESSION — Family Provision Claim — plaintiffs eligible persons as daughters of testatrix — whether testatrix made adequate provision for proper maintenance of plaintiffs — no provision made for plaintiffs under will — equality is not starting point for purposes of Family Provision legislation — essential question is whether testatrix failed in a moral duty to make proper and adequate provision for eligible persons for whom the community would expect provision to be made — defendant was dependent on testatrix and his father for accommodation — defendants in relatively worse financial positions than plaintiffs — held: in circumstances, neither plaintiff left with inadequate provision for their proper maintenance.
Case Details
Citation[2011] NSWSC 81
CourtNSWSC
JurisdictionNew South Wales
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