[2018] NSWCA 65

Judgment Summary Supreme Court New South Wales Court of Appeal Carr v Homersham [2018] NSWCA 65 Basten JA, Macfarlan JA, Leeming JA The Court of Appeal has upheld an appeal brought by Ms Cynthia Carr against a judgment of the Supreme Court finding that the late Ms Beryl Hordern lacked testamentary capacity when she executed a will in 2004. In 2001 Ms Hordern had executed a will leaving the whole of her estate to her niece, Ms Ann Richardson. In 2004 she had executed a further will revoking the 2001 will and leaving the whole of her estate to Ms Carr. As Ms Richardson resides in Portugal, she appointed Ms Paula Homersham as her attorney to seek, on Ms Richardson’s behalf, a grant of administration of Ms Hordern’s estate with the 2001 will annexed. After a two day hearing in the Equity Division before Robb J, his Honour found that Ms Hordern lacked testamentary capacity when she executed the 2004 will. His Honour therefore granted administration in solemn form, with the 2001 will annexed. In its judgment, the Court of Appeal held that Ms Carr had discharged her onus of proving that the 2004 will was the will of a free and capable testator. The Court held that the primary judge erred in finding that a material false belief that Ms Hordern had concerning Ms Richardson was a delusion that indicated that, when Ms Hordern signed the 2004 will, she did not have the capacity to comprehend and appreciate the claims of potential beneficiaries, including Ms Richardson. The Court discussed the meaning and language of the expression “insane delusion”, and the significance of false beliefs held by testators or testatrices and the circumstances in which they may indicate a lack of testamentary capacity. The Court ordered that probate be granted to Ms Carr of Ms Hordern’s 2004 will.

This summary has been prepared for general information only. It is not intended to be a substitute for the judgment of the Court or to be used in any later consideration of the Court’s judgment.