Romascu v Manolache [2011] NSWSC 1362

Romascu v Manolache [2011] NSWSC 1362

The Defendant failed to satisfy the burden of proof that the deceased had testamentary capacity or knew and approved the contents of the December Will at the time of its execution. The medical evidence, combined with the inadequate solicitor assessment, demonstrated sufficient doubt about capacity and knowledge, precluding a grant of probate for the December Will. The May Will, being uncontested and properly executed, should be administered.

Parties
Plaintiff: Florin Adrian Romascu; Defendant: Elena Manolache
Jurisdiction
Australia
Judgment Date
12 December 2011
Procedural Posture
Probate Proceedings / Principal Judgment
Outcome
December Will not admitted to probate; May Will to be administered.
Legal Topics
Testamentary Capacity, Validity of Wills, Probate, Knowledge and Approval, Solicitor Duties in Will Making
Succession Law Equity Testamentary Capacity Validity of Wills Probate Knowledge and Approval Solicitor Duties in Will Making

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 5 Authorities cited 46 Party arguments 2 Amounts and remedies 8
Sign in to unlock

Parties

Florin Adrian Romascu

Plaintiff

Elena Manolache

Defendant

Procedural Posture

Probate Proceedings / Principal Judgment

Legal Issues

  1. 1 Whether the December 2009 Will of Maria Romascu is valid and ought to be admitted to probate
  2. 2 Whether the deceased had testamentary capacity and knew and approved the contents of the December Will

Ratio Decidendi

The Defendant failed to satisfy the burden of proof that the deceased had testamentary capacity or knew and approved the contents of the December Will at the time of its execution. The medical evidence, combined with the inadequate solicitor assessment, demonstrated sufficient doubt about capacity and knowledge, precluding a grant of probate for the December Will. The May Will, being uncontested and properly executed, should be administered.

Court Disposition

December Will not admitted to probate; May Will to be administered.

Orders

  • Letters of administration with the deceased's Will made on 6 May 2009 annexed in solemn form be granted to the Plaintiff.
  • The matter be referred to the Registrar to complete the grant.