Dybac v Czerwaniw; The Estate of the Late Apolonia Czerwaniw [2022] NSWSC 1279

Dybac v Czerwaniw; The Estate of the Late Apolonia Czerwaniw [2022] NSWSC 1279

The Court found that the January 2020 'Change of Will' document was not the valid testamentary act of Apolonia Czerwaniw because substantial doubt existed as to her testamentary capacity at the time of its execution, especially in light of her age, serious medical condition, administration of psychotropic medications, lack of legal advice, the sudden nature of the decision, and absence of prior indication to change long-standing testamentary dispositions. The onus of proof on capacity and knowledge and approval was not discharged. Accordingly, the 2020 document was held to be of no effect, and probate was granted for the 2005 will and 2009 codicil.

Jurisdiction
Australia
Judgment Date
21 September 2022
Procedural Posture
Probate Proceedings / Final Orders Following Hearing and Submissions
Outcome
Declaration that the January 2020 'Change of Will' is of no legal effect; probate of 2005 will and 2009 codicil granted; cross-claim is dismissed; directions for determination of costs.
Legal Topics
['testamentary Capacity' 'probate' 'knowledge and Approval of Will']
['equity' 'succession Law'] ['testamentary Capacity' 'probate' 'knowledge and Approval of Will']

Case Brief

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Procedural Posture

Probate Proceedings / Final Orders Following Hearing and Submissions

Legal Issues

  1. 1 ["Whether the January 2020 'Change of Will' document executed by Apolonia Czerwaniw is valid as her testamentary instrument" 'Whether Apolonia Czerwaniw had testamentary capacity at the time of executing the January 2020 document' 'Whether the testatrix knew and approved the contents of the January 2020 document']

Ratio Decidendi

The Court found that the January 2020 'Change of Will' document was not the valid testamentary act of Apolonia Czerwaniw because substantial doubt existed as to her testamentary capacity at the time of its execution, especially in light of her age, serious medical condition, administration of psychotropic medications, lack of legal advice, the sudden nature of the decision, and absence of prior indication to change long-standing testamentary dispositions. The onus of proof on capacity and knowledge and approval was not discharged. Accordingly, the 2020 document was held to be of no effect, and probate was granted for the 2005 will and 2009 codicil.

Court Disposition

Declaration that the January 2020 'Change of Will' is of no legal effect; probate of 2005 will and 2009 codicil granted; cross-claim is dismissed; directions for determination of costs.

Orders

  • ['Probate of the will dated 1 November 2005 and the codicil dated 21 September 2009 granted in solemn form to the plaintiff.' "Declaration that the handwritten document entitled 'Change of Will' executed on 9 January 2020 is not a valid testamentary instrument of the deceased and has no force and effect." 'File to...