Drivas v Jakopovic [2019] NSWCA 218

Drivas v Jakopovic [2019] NSWCA 218

The appeal was dismissed because the primary judge was correct to give significant weight to Mr Taylor's evidence of his usual practice, supported by his firm's documents, that he took instructions from the deceased alone and would not have made the relevant change to the contingent gift without specific instructions. The contemporaneous medical material and expert medical opinions did not require a finding of testamentary incapacity, because the CT scan and MMSE results were limited indicators and the expert conclusions rested on incomplete facts or reasoning outside the experts' specialised knowledge. Acceptance of Mr Taylor's evidence also established that the deceased knew and...

Jurisdiction
Australia
Judgment Date
05 September 2019
Procedural Posture
Succession Appeal Concerning Testamentary Capacity and Knowledge and Approval of a Will / Appeal to the Court of Appeal From the Supreme Court of New South Wales, Equity Division Decision [2018] NSWSC 1803
Outcome
Appeal dismissed with costs.
Legal Topics
['testamentary Capacity' 'knowledge and Approval of Will' 'probate' 'expert Medical Evidence' "evidence of Solicitor's Usual Practice" 'civil Standard of Proof']
['succession' 'evidence'] ['testamentary Capacity' 'knowledge and Approval of Will' 'probate' 'expert Medical Evidence' "evidence of Solicitor's Usual Practice" 'civil Standard of Proof']

Case Brief

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Procedural Posture

Succession Appeal Concerning Testamentary Capacity and Knowledge and Approval of a Will / Appeal to the Court of Appeal From the Supreme Court of New South Wales, Equity Division Decision [2018] NSWSC 1803

Legal Issues

  1. 1 ["Whether the primary judge erred in giving significant weight to the solicitor's evidence of usual practice concerning preparation and execution of the September 2007 Will." "Whether the primary judge failed to give proper weight to the medical evidence concerning the deceased's cognitive impairment and testamentary capacity." 'Whether circumstances involving the respondent required further consideration of whether the deceased knew and approved of the terms of the September 2007 Will.' "Whether the primary judge was required to make further findings concerning the respondent's credit."]

Ratio Decidendi

The appeal was dismissed because the primary judge was correct to give significant weight to Mr Taylor's evidence of his usual practice, supported by his firm's documents, that he took instructions from the deceased alone and would not have made the relevant change to the contingent gift without specific instructions. The contemporaneous medical material and expert medical opinions did not require a finding of testamentary incapacity, because the CT scan and MMSE results were limited indicators and the expert conclusions rested on incomplete facts or reasoning outside the experts' specialised knowledge. Acceptance of Mr Taylor's evidence also established that the deceased knew and...

Court Disposition

Appeal dismissed with costs.

Orders

  • ['Appeal dismissed with costs.']