Starr v Miller

[Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.]

HEADNOTE [This headnote is not to be read as part of the judgment] On 26 May 2018, Ms Nancy Louise Starr (the deceased) died aged 72 years, leaving four adult daughters (Belinda, Margo, Susan and Emma) surviving her. She left an estate with an agreed gross value of $8,674,379. This included substantial rural property interests. By a will dated 16 July 2012 she, in essence, left her principal rural interests and related assets to Margo, with the remainder to be divided equally between her three other daughters. In the Equity Division proceedings, from which the present appeal is brought, Susan sought revocation of a grant of probate in common form which had been made in respect of the 2012 will. She alleged that the deceased lacked testamentary capacity at the time of executing that will, and that the deceased's knowledge and approval of the terms of the will were not established. Susan sought probate of an earlier will. In separate proceedings, she also sought further provision out of the estate pursuant to the Succession Act 2006 (NSW). By a judgment of 6 May 2021 Hallen J granted probate in solemn form of the 2012 will to the executors named in it, being, Margo, Mr David Brough (the deceased's accountant) and Mr Bradford Stuart (the deceased's solicitor) ([2021] NSWSC 426). They are the respondents to this appeal. As well, his Honour awarded Susan $750,000 by way of further provision out of the estate. The principal issues that arose on the appeal were as follows: (1) Whether the instructions given by the deceased as to testamentary intentions were clear and unequivocal and whether she maintained them until the execution of the will; (2) Whether the deceased's statement that she was not agreeable to one of her daughters getting any money was a reference to settlement of an earlier dispute, not to a testamentary gift; (3) Whether the deceased knew and approved the terms of the will that she signed; (4) Whether the deceased had testamentary capacity at the time she gave instructions for and executed the will. The Court unanimously dismissed the appeal: In relation to Issue 1 (instructions as to testamentary intentions) The primary judge was correct in finding that, from February to July 2012, the deceased clearly intended that Margot receive the farm and her other three daughters receive the rest of her assets: [34]. His Honour was entitled, as he did, to place greater weight on the contemporaneous documents and the logical inferences to be drawn from them than Mr Stuart's limited recollection in cross-examination: [35]-[36]. In relation to Issue 2 (whether there was a reference to a testamentary gift) The primary judge was correct in finding that the deceased's statement at the 16 July 2016 meeting that she was not "agreeable about getting Emma any money" was a reference to settlement of an earlier dispute, not to a testamentary gift: [39]-[43]. His Honour was entitled to place greater weight on the undisputed contemporaneous evidence of Mr Stuart's careful approach to the deceased's execution of the will than on certain of Mr Stuart's answers in cross-examination which were not rational in light of the former: [42]. In relation to Issue 3 (knowledge and approval of terms of the will) The primary judge was correct in inferring the deceased's knowledge and approval of the will and in finding that there were no "suspicious circumstances" which warranted a higher bar for proof of knowledge and approval: [51]-[53]. This conclusion was supported by his Honour's findings that the deceased exercised her own judgment in deciding how to dispose of her assets, that the whole of the will was read out to the deceased before she indicated her approval of it, and that Margo was not present at the meeting when the will was read out and signed by the deceased: [46], [48]-[53]. In relation to Issue 4 (testamentary capacity) The primary judge was correct in inferring that the deceased had testamentary capacity to make the 2012 will: [55]-[70]. In reaching this conclusion, there was no error in his Honour placing less weight on the retrospective opinion of Dr Cetiner, a consultant psycho-geriatrician who found that the deceased's mental condition varied between mild to moderate Alzheimer's disease, than on the contemporaneous documentary evidence of the instructions that the deceased gave to her solicitor, Mr Stuart, which suggested that she had full testamentary capacity at the time she executed the will: [61]-[62].