Re Estate Charell, deceased [2021] NSWSC 591

Re Estate Charell, deceased [2021] NSWSC 591

The deceased had testamentary capacity at the time of executing the will dated 20 July 2005. The will was rational, responsive to the deceased’s circumstances, and duly executed. The defendant, having received the benefit of previous transactions and ownership adjustments, is liable to reimburse the estate for the amount paid out for the mortgage discharge. Liability for the sum discharged to remove a caveatable equitable charge and for net rental receipts should be apportioned according to co-ownership proportions. The defendant is not required to account for the insurance payout. The application for a family provision order is reserved.

Parties
Plaintiff: Deborah Peta Losey; Defendant: Wendy Therese Charell
Jurisdiction
Australia
Judgment Date
26 May 2021
Procedural Posture
Contested Probate and Administration Suit / Principal Judgment
Outcome
Application to revoke probate dismissed; will of 20 July 2005 upheld; accounting and liability for certain sums determined in principle; further orders and family provision application reserved.
Legal Topics
Testamentary Capacity, Contested Probate, Administration of Estates, Family Provision, Co Ownership Accounting, Fiduciary Duties, Powers of Attorney, Enduring Guardian Appointments
Succession Law Equity Testamentary Capacity Contested Probate Administration of Estates Family Provision Co Ownership Accounting Fiduciary Duties +2 more

Case Brief

Summary, issues, holding and outcome

More case intelligence is available

Unlock the full research layer for this judgment.

Full judgment text Downloadable case file Legal principles 4 Authorities cited 16 Party arguments 2 Amounts and remedies 5
Sign in to unlock

Parties

Deborah Peta Losey

Plaintiff

Wendy Therese Charell

Defendant

Procedural Posture

Contested Probate and Administration Suit / Principal Judgment

Legal Issues

  1. 1 Whether the will dated 20 July 2005 was invalid for want of testamentary capacity
  2. 2 Whether the defendant should bear liability for monies paid out for mortgage and equitable charge on the estate property
  3. 3 Whether the defendant is accountable for insurance proceeds and net rent receipts

Ratio Decidendi

The deceased had testamentary capacity at the time of executing the will dated 20 July 2005. The will was rational, responsive to the deceased’s circumstances, and duly executed. The defendant, having received the benefit of previous transactions and ownership adjustments, is liable to reimburse the estate for the amount paid out for the mortgage discharge. Liability for the sum discharged to remove a caveatable equitable charge and for net rental receipts should be apportioned according to co-ownership proportions. The defendant is not required to account for the insurance payout. The application for a family provision order is reserved.

Court Disposition

Application to revoke probate dismissed; will of 20 July 2005 upheld; accounting and liability for certain sums determined in principle; further orders and family provision application reserved.

Orders

  • The deceased's will dated 20 July 2005 is valid; the grant of probate to the defendant on 9 January 2018 is endorsed as a grant in solemn form.
  • The defendant is liable for the whole of the sum of $304,590.71 paid for discharge of the mortgage on the Simpson Street property and must reimburse the estate $253,825.59.