d’Apice v Gutkovich - Estate of Abraham (No. 2) [2010] NSWSC 1333

d’Apice v Gutkovich - Estate of Abraham (No. 2) [2010] NSWSC 1333

The Court held that Mrs Abraham, on the balance of probabilities, possessed testamentary capacity when she executed her will dated 3 December 2004 and, if necessary, when executing the codicil of 7 July 2004. The evidence, particularly from Dr Wallace and Mr d'Apice, supported the conclusion that despite her dementia and advanced age, Mrs Abraham understood the nature of her act, generally comprehended the extent of her assets, and was able to rationally assess and act on the claims of potential beneficiaries, including the exclusion of Mrs Gutkovich. There was insufficient credible evidence to show the exclusion was the product of disorder of the mind or outside influence, and the...

Jurisdiction
Australia
Judgment Date
22 November 2010
Procedural Posture
Probate Proceeding / Judgment on Grant of Probate and Cross Claim
Outcome
Probate granted in solemn form of the will of 3 December 2004 to the plaintiff.
Legal Topics
['testamentary Capacity' 'revocation of Bequest' 'dementia and Will Making' 'execution of Wills' 'cross Claim for Probate']
['wills and Estates' 'probate'] ['testamentary Capacity' 'revocation of Bequest' 'dementia and Will Making' 'execution of Wills' 'cross Claim for Probate']

Case Brief

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Procedural Posture

Probate Proceeding / Judgment on Grant of Probate and Cross Claim

Legal Issues

  1. 1 ['Whether Mrs Abraham had testamentary capacity at the time of making her will dated 3 December 2004' 'Whether Mrs Abraham had testamentary capacity to execute the codicil of 7 July 2004 revoking gifts to the defendant' 'Whether the revocation of a bequest to a carer required full testamentary capacity or a lesser standard']

Ratio Decidendi

The Court held that Mrs Abraham, on the balance of probabilities, possessed testamentary capacity when she executed her will dated 3 December 2004 and, if necessary, when executing the codicil of 7 July 2004. The evidence, particularly from Dr Wallace and Mr d'Apice, supported the conclusion that despite her dementia and advanced age, Mrs Abraham understood the nature of her act, generally comprehended the extent of her assets, and was able to rationally assess and act on the claims of potential beneficiaries, including the exclusion of Mrs Gutkovich. There was insufficient credible evidence to show the exclusion was the product of disorder of the mind or outside influence, and the...

Court Disposition

Probate granted in solemn form of the will of 3 December 2004 to the plaintiff.

Orders

  • ['Order that probate of the will in solemn form of Irene Abraham made on 3 December 2004 be granted to the plaintiff.' 'Order that the proceedings be referred to the Registrar to complete the grant.' "Order that the claims in paragraphs 2, 3 and 4 under the heading 'Relief Claimed' in the further amended statement...