Lewis v Lewis [2020] NSWSC 1306

Lewis v Lewis [2020] NSWSC 1306

The testator possessed testamentary capacity at all relevant times. However, for complex provisions—especially those conferring broad discretionary powers and claw-back mechanisms on David as Trustee—the testator’s lack of understanding (resulting from disinterest and delegation, not incapacity) meant the requirements of knowledge and approval were not satisfied. Only the straightforward clauses (1–11) of the December 2014 will and mechanical clauses (3, 10, 11) of the August 2015 codicil are admitted to probate. The rest are excluded.

Jurisdiction
Australia
Judgment Date
25 September 2020
Procedural Posture
Equity Probate Proceedings / Principal Judgment After Contested Hearing
Outcome
December 2014 will (clauses 1–11) and August 2015 codicil (clauses 3, 10, 11) admitted to probate; other clauses and codicils excluded; cross-claim dismissed; parties to bring in proposed minute of order for costs; proceedings adjourned for further orders.
Legal Topics
['testamentary Capacity' 'knowledge and Approval' 'contested Probate' 'family Trusts' 'companies' 'bequest Claw Back' 'solicitor Conduct']
['succession' 'equity' 'probate'] ['testamentary Capacity' 'knowledge and Approval' 'contested Probate' 'family Trusts' 'companies' 'bequest Claw Back' 'solicitor Conduct']

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Procedural Posture

Equity Probate Proceedings / Principal Judgment After Contested Hearing

Legal Issues

  1. 1 ['Whether the testator had testamentary capacity at the time of execution of wills and codicils' 'Whether the testator knew and approved the contents of the December 2014 will and 2015 codicils' 'Whether specific provisions (including claw-back clauses and gifts of company shares) should be admitted to probate']

Ratio Decidendi

The testator possessed testamentary capacity at all relevant times. However, for complex provisions—especially those conferring broad discretionary powers and claw-back mechanisms on David as Trustee—the testator’s lack of understanding (resulting from disinterest and delegation, not incapacity) meant the requirements of knowledge and approval were not satisfied. Only the straightforward clauses (1–11) of the December 2014 will and mechanical clauses (3, 10, 11) of the August 2015 codicil are admitted to probate. The rest are excluded.

Court Disposition

December 2014 will (clauses 1–11) and August 2015 codicil (clauses 3, 10, 11) admitted to probate; other clauses and codicils excluded; cross-claim dismissed; parties to bring in proposed minute of order for costs; proceedings adjourned for further orders.

Orders

  • ['Adjourn proceedings for 14 days.' 'Plaintiff to consult with defendant and bring in proposed minute of order giving effect to judgment and dealing with costs at least 2 days before adjourned date.' 'Any party seeking costs out of estate to notify application at least 2 days before adjourned date.' 'Defendant to...