Haim v NSW Trustee & Guardian; Estate of Feuerring [2013] NSWSC 1406

Haim v NSW Trustee & Guardian; Estate of Feuerring [2013] NSWSC 1406

The defendant did not discharge the onus of proof that the deceased had testamentary capacity at the time of making the 2003 will. Evidence indicated the deceased suffered from persistent paranoid delusions and was unable to bring to mind or evaluate his sister's claim on his testamentary bounty; it is unlikely that Ben Marriot existed. The 2003 will was therefore invalid for want of testamentary capacity.

Jurisdiction
Australia
Judgment Date
17 September 2013
Procedural Posture
Probate Proceeding / Judgment
Outcome
Probate of the 2003 will refused; probate of the 1997 will granted
Legal Topics
['testamentary Capacity' 'probate' 'wills' 'onus of Proof']
['succession Law' 'equity'] ['testamentary Capacity' 'probate' 'wills' 'onus of Proof']

Case Brief

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Procedural Posture

Probate Proceeding / Judgment

Legal Issues

  1. 1 ['Whether the deceased had testamentary capacity at the time of making the 2003 will' 'Whether probate of the 2003 will should be granted' 'Onus of proof for testamentary capacity']

Ratio Decidendi

The defendant did not discharge the onus of proof that the deceased had testamentary capacity at the time of making the 2003 will. Evidence indicated the deceased suffered from persistent paranoid delusions and was unable to bring to mind or evaluate his sister's claim on his testamentary bounty; it is unlikely that Ben Marriot existed. The 2003 will was therefore invalid for want of testamentary capacity.

Court Disposition

Probate of the 2003 will refused; probate of the 1997 will granted

Orders

  • ["Probate of the deceased's will dated 16 September 1997 in solemn form be granted to the defendant." 'Cross-claim dismissed.' 'Costs of both parties to be paid out of the estate on the indemnity basis.' 'Proceedings remitted to the Registrar to complete the grant.']