Chisak v Presot [2021] NSWSC 597

Chisak v Presot [2021] NSWSC 597

The deceased had testamentary capacity and knew and approved the contents of the 2017 Will; Ivy was not a dependent grandchild within the meaning of s 57(1)(e) of the Succession Act 2006 (NSW), and even if she was, the 2017 Will made adequate provision for her. Thus, the amended Statement of Claim was dismissed and probate in solemn form of the 2017 Will was granted to the Defendants.

Jurisdiction
Australia
Judgment Date
27 May 2021
Procedural Posture
Principal Judgment / Final Judgment After Hearing
Outcome
Statement of Claim dismissed; probate in solemn form granted to Defendants; matter remitted to Registrar; costs stood over.
Legal Topics
['contested Probate' 'testamentary Capacity' 'knowledge and Approval of Will' 'suspicious Circumstances' 'family Provision Order' 'dependence of Grandchild']
['equity' 'succession'] ['contested Probate' 'testamentary Capacity' 'knowledge and Approval of Will' 'suspicious Circumstances' 'family Provision Order' 'dependence of Grandchild']

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Procedural Posture

Principal Judgment / Final Judgment After Hearing

Legal Issues

  1. 1 ['Did the deceased have testamentary capacity at the making of the 2017 Will?' 'Did the deceased know and approve the contents of the 2017 Will?' 'Was the plaintiff, Ivy, an eligible person as a dependent grandchild for a family provision order?' 'If eligible, were there factors warranting the making of the application?' 'If so, was adequate provision made for Ivy?']

Ratio Decidendi

The deceased had testamentary capacity and knew and approved the contents of the 2017 Will; Ivy was not a dependent grandchild within the meaning of s 57(1)(e) of the Succession Act 2006 (NSW), and even if she was, the 2017 Will made adequate provision for her. Thus, the amended Statement of Claim was dismissed and probate in solemn form of the 2017 Will was granted to the Defendants.

Court Disposition

Statement of Claim dismissed; probate in solemn form granted to Defendants; matter remitted to Registrar; costs stood over.

Orders

  • ['The amended Statement of Claim filed by the Plaintiff on 11 December 2019 be dismissed.' 'Probate in solemn form of the Will dated 26 April 2017 be granted to the Defendants.' 'The matter be remitted to the Senior Deputy Registrar in Probate to attach a copy of the final orders to the original grant and return the...