The Estate of Robyn Alice May Linworth [2021] NSWSC 334

The Estate of Robyn Alice May Linworth [2021] NSWSC 334

The caveator had an accepted interest as a beneficiary under an earlier will, and the medical and other evidence of dementia, stroke, cognitive impairment, aphasia, impaired comprehension and difficulty expressing herself raised a doubt requiring investigation as to the deceased's testamentary capacity when executing the 2017 Will and 2018 Codicil. The Court therefore was not satisfied that the evidence failed to show the requirements in Pt 78 r 71(4), and did not order that the caveats cease to be in force.

Jurisdiction
Australia
Judgment Date
09 April 2021
Procedural Posture
Probate Proceedings Concerning Applications for Probate of a Will and Codicil, With Notices of Motion for Orders That Caveats Cease to Be in Force / Hearing of Notices of Motion Filed by the Applicants
Outcome
The Court did not order that the caveats cease to be in force in respect of each application; the matter was to proceed by pleadings with further orders and directions.
Legal Topics
['caveat Against Grant of Probate' 'proof in Solemn Form' 'general Caveat' 'testamentary Capacity' 'dementia and Cognitive Impairment' 'interest in Estate' 'costs of Notices of Motion']
['succession' 'probate and Administration'] ['caveat Against Grant of Probate' 'proof in Solemn Form' 'general Caveat' 'testamentary Capacity' 'dementia and Cognitive Impairment' 'interest in Estate' 'costs of Notices of Motion']

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Procedural Posture

Probate Proceedings Concerning Applications for Probate of a Will and Codicil, With Notices of Motion for Orders That Caveats Cease to Be in Force / Hearing of Notices of Motion Filed by the Applicants

Legal Issues

  1. 1 ["Whether the caveator had an interest in the deceased's estate, or a reasonable prospect of establishing such an interest" 'Whether there was a doubt as to whether probate of the 2017 Will and 2018 Codicil should be granted' 'Whether the caveats should cease to be in force' 'Whether the proceedings should continue by pleadings']

Ratio Decidendi

The caveator had an accepted interest as a beneficiary under an earlier will, and the medical and other evidence of dementia, stroke, cognitive impairment, aphasia, impaired comprehension and difficulty expressing herself raised a doubt requiring investigation as to the deceased's testamentary capacity when executing the 2017 Will and 2018 Codicil. The Court therefore was not satisfied that the evidence failed to show the requirements in Pt 78 r 71(4), and did not order that the caveats cease to be in force.

Court Disposition

The Court did not order that the caveats cease to be in force in respect of each application; the matter was to proceed by pleadings with further orders and directions.

Orders

  • ["The Court, being satisfied that the caveator has an interest in the deceased's estate and that there is doubt as to whether the grant of probate should be made of the deceased's Will and Codicil, does not order that the caveats cease to be in force in respect of each application." "The costs of the notices of...