Estate of Beryl Lee Hordern (Deceased); Homersham v Carr [2017] NSWSC 753

Estate of Beryl Lee Hordern (Deceased); Homersham v Carr [2017] NSWSC 753

The evidence established that Beryl Lee Hordern suffered from moderate to severe dementia at the relevant time, acted on a false belief affecting the disposition of her estate, and could not fully comprehend and appreciate the claims to which she ought to give effect. The deficit in cognitive function and rational...

Source-derived case information.

Jurisdiction
Australia
Judgment Date
13 June 2017
Procedural Posture
Probate Dispute / Final Judgment
Outcome
Administration with the will annexed is granted to the plaintiff in solemn form in respect of the 2001 will. Cross-claim for probate of the 2004 will dismissed.
Legal Topics
['testamentary Capacity' 'solicitor’s Conduct' 'invalidity of Wills' 'dementia and Capacity' 'delusions in Testamentary Disposition' 'onus of Proof in Probate']
['succession Law' 'equity' 'probate'] ['testamentary Capacity' 'solicitor’s Conduct' 'invalidity of Wills' 'dementia and Capacity' 'delusions in Testamentary Disposition' 'onus of Proof in Probate']

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Procedural Posture

Probate Dispute / Final Judgment

Legal Issues

  1. 1 ['Whether Beryl Lee Hordern had testamentary capacity when executing her last will dated 5 April 2004' 'Whether the deceased suffered from a disorder or delusion affecting her ability to comprehend and appreciate claims on her bounty' 'Whether the test in Banks v Goodfellow for testamentary capacity is satisfied']

Ratio Decidendi

The evidence established that Beryl Lee Hordern suffered from moderate to severe dementia at the relevant time, acted on a false belief affecting the disposition of her estate, and could not fully comprehend and appreciate the claims to which she ought to give effect. The deficit in cognitive function and rational appreciation of claims meant she did not have testamentary capacity in accordance with Banks v Goodfellow. The presumption of capacity was displaced and the burden of proof was not met by Ms Carr as proponent of the 2004 will.

Court Disposition

Administration with the will annexed is granted to the plaintiff in solemn form in respect of the 2001 will. Cross-claim for probate of the 2004 will dismissed.

Orders

  • ['Declaration that the 2001 will is the last will of Beryl Lee Hordern.' 'Order for administration with the will annexed to be granted to the plaintiff in solemn form for the use and benefit of Ann Richardson.' 'Plaintiff’s costs to be paid out of the deceased’s estate on an indemnity basis.' 'Matter referred to...