Bell v NSW Trustee & Guardian; Estate of William Anthony Hickey [2020] NSWSC 1164

Bell v NSW Trustee & Guardian; Estate of William Anthony Hickey [2020] NSWSC 1164

The deceased had testamentary capacity under the Banks v Goodfellow test when he made the 22 April 2016 will. Despite severe and permanent brain injury, his deficits did not prevent him from understanding the nature and effect of making a will, the nature and extent of his assets, or the claims of the persons with a call on his bounty. The 2016 will made rational and proportionate provision for his cousins and for Faye Kimber and Madeleine Kimber-Bennett, reflecting his changed family and social circumstances. The process by which instructions were taken and the will was read supported knowledge and approval, and there was no evidence establishing coercion or probate undue influence.

Jurisdiction
Australia
Judgment Date
28 August 2020
Procedural Posture
Contested Probate Proceedings in Equity Concerning the Estate of William Anthony Hickey / Principal Judgment After Hearing
Outcome
Plaintiffs' amended statement of claim dismissed; probate of the will dated 22 April 2016 granted in solemn form to NSW Trustee & Guardian.
Legal Topics
['contested Probate' 'testamentary Capacity' 'knowledge and Approval' 'undue Influence in Probate' 'grant of Probate in Solemn Form']
['succession' 'equity'] ['contested Probate' 'testamentary Capacity' 'knowledge and Approval' 'undue Influence in Probate' 'grant of Probate in Solemn Form']

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Procedural Posture

Contested Probate Proceedings in Equity Concerning the Estate of William Anthony Hickey / Principal Judgment After Hearing

Legal Issues

  1. 1 ['Whether William Anthony Hickey had testamentary capacity when he executed the will dated 22 April 2016.' 'Whether the deceased knew and approved the contents of the will dated 22 April 2016.' 'Whether the will dated 22 April 2016 was procured by undue influence as understood in probate law.' 'Whether probate should be granted of the will dated 22 April 2016 or an earlier will dated 21 December 2011.']

Ratio Decidendi

The deceased had testamentary capacity under the Banks v Goodfellow test when he made the 22 April 2016 will. Despite severe and permanent brain injury, his deficits did not prevent him from understanding the nature and effect of making a will, the nature and extent of his assets, or the claims of the persons with a call on his bounty. The 2016 will made rational and proportionate provision for his cousins and for Faye Kimber and Madeleine Kimber-Bennett, reflecting his changed family and social circumstances. The process by which instructions were taken and the will was read supported knowledge and approval, and there was no evidence establishing coercion or probate undue influence.

Court Disposition

Plaintiffs' amended statement of claim dismissed; probate of the will dated 22 April 2016 granted in solemn form to NSW Trustee & Guardian.

Orders

  • ["Order that the plaintiffs' amended statement of claim, filed on 16 May 2018, be dismissed." 'Order that Probate of the will of William Anthony Hickey dated 22 April 2016 in solemn form be granted to the cross claimant NSW Trustee & Guardian.' 'Order that further compliance with the probate rules be dispensed...