Estate of George Aeneas McDonald; Howard v The Sydney Children’s Hospital Network (Randwick & Westmead) & Ors [2015] NSWSC 1610

Estate of George Aeneas McDonald; Howard v The Sydney Children’s Hospital Network (Randwick & Westmead) & Ors [2015] NSWSC 1610

Although suspicious circumstances existed, the deceased had testamentary capacity, there was no evidence of a failing mind, the will was simple, it was read aloud to him with a copy before him, and he orally and by gesture assented before signing. In those circumstances the plaintiff proved knowledge and approval; it was not necessary to prove that Mr McDonald actually considered his earlier wills or weighed the prior charitable claims on his bounty. The will nevertheless failed to give effect to his instructions insofar as it framed the church and hospital gifts as a request to Lisa Howard rather than legacies, so rectification under s 27(1) of the Succession Act 2006 (NSW) was warranted.

Jurisdiction
Australia
Judgment Date
30 October 2015
Procedural Posture
Probate Proceedings Concerning Proof in Solemn Form and Rectification of a Will / Principal Judgment After Hearing
Outcome
Probate of the rectified will granted to the plaintiff in solemn form; rectification and extension of time granted; costs ordered out of the estate.
Legal Topics
['suspicious Circumstances' 'knowledge and Approval' 'testamentary Capacity' 'rectification of Wills' 'costs From Estate']
['wills, Probate and Administration' 'succession Law' 'evidence'] ['suspicious Circumstances' 'knowledge and Approval' 'testamentary Capacity' 'rectification of Wills' 'costs From Estate']

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Procedural Posture

Probate Proceedings Concerning Proof in Solemn Form and Rectification of a Will / Principal Judgment After Hearing

Legal Issues

  1. 1 ['Whether George Aeneas McDonald knew and approved of the contents of the document signed by him as his will on 7 June 2013.' 'Where suspicious circumstances attended execution, whether the person propounding the will had to prove that the testator in fact weighed all claims on his testamentary bounty and considered his prior testamentary dispositions.' 'Whether the will should be rectified because it expressed non-binding requests to Lisa Howard rather than legacies to the church and hospital.']

Ratio Decidendi

Although suspicious circumstances existed, the deceased had testamentary capacity, there was no evidence of a failing mind, the will was simple, it was read aloud to him with a copy before him, and he orally and by gesture assented before signing. In those circumstances the plaintiff proved knowledge and approval; it was not necessary to prove that Mr McDonald actually considered his earlier wills or weighed the prior charitable claims on his bounty. The will nevertheless failed to give effect to his instructions insofar as it framed the church and hospital gifts as a request to Lisa Howard rather than legacies, so rectification under s 27(1) of the Succession Act 2006 (NSW) was warranted.

Court Disposition

Probate of the rectified will granted to the plaintiff in solemn form; rectification and extension of time granted; costs ordered out of the estate.

Orders

  • ['Order that subject to due compliance with the Rules of Court, probate of the will dated 8 June 2013 of George Aeneas McDonald late of Greenwich, in the State of New South Wales, as rectified in accordance with order 2 below, be granted to the plaintiff in solemn form.' 'Order pursuant to s 27(1) of the Succession...