Dickman v Holley; Estate of Simpson [2013] NSWSC 18

Dickman v Holley; Estate of Simpson [2013] NSWSC 18

The 1999 will of Mrs Simpson is invalid because the testatrix lacked testamentary capacity, was unduly influenced, and did not know and approve the contents; constructive trust in favour of Mr Dickman was not established; delay did not bar the challenge; grant of probate of 14 September 1999 will is revoked and a grant in common form of the 23 September 1998 will to Mr Dickman should issue; executor Holley is liable to reimburse the estate for distributions made without good faith protection.

Parties
Plaintiff: David Wilfred Dickman; 1st Defendant: Peter Ezekiel Holley; 2nd Defendant: The Salvation Army (NSW) Property Trust
Jurisdiction
Australia
Judgment Date
31 January 2013
Procedural Posture
Principal Judgment / Final Determination; Reasons for Orders to Be Brought in
Outcome
Grant of probate of 14 September 1999 will revoked; constructive trust claim dismissed; grant of probate in common form to Mr Dickman for 23 September 1998 will; executor ordered to reimburse estate.
Legal Topics
Revocation of Grant of Probate, Constructive Trust, Testamentary Capacity, Undue Influence, Knowledge and Approval, Laches, Executor Liability
Wills and Estates Equity Probate Revocation of Grant of Probate Constructive Trust Testamentary Capacity Undue Influence Knowledge and Approval +2 more

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Parties

David Wilfred Dickman

Plaintiff

Peter Ezekiel Holley

1st Defendant

The Salvation Army (NSW) Property Trust

2nd Defendant

Procedural Posture

Principal Judgment / Final Determination; Reasons for Orders to Be Brought in

Legal Issues

  1. 1 Whether constructive trust arose from testator's representations
  2. 2 Whether claim for revocation of probate barred by delay
  3. 3 Whether testator lacked testamentary capacity

Ratio Decidendi

The 1999 will of Mrs Simpson is invalid because the testatrix lacked testamentary capacity, was unduly influenced, and did not know and approve the contents; constructive trust in favour of Mr Dickman was not established; delay did not bar the challenge; grant of probate of 14 September 1999 will is revoked and a grant in common form of the 23 September 1998 will to Mr Dickman should issue; executor Holley is liable to reimburse the estate for distributions made without good faith protection.

Court Disposition

Grant of probate of 14 September 1999 will revoked; constructive trust claim dismissed; grant of probate in common form to Mr Dickman for 23 September 1998 will; executor ordered to reimburse estate.

Orders

  • Consequential orders for delivery up to registrar of original grant and fresh grant to Mr Dickman to be brought in by counsel.
  • Mr Holley to reimburse the estate for moneys distributed; final orders and costs stood over for submissions.