Levy Estate - Application of Samuels

[2010] NSWSC 1014

CITATION:	Levy Estate - Application of Samuels [2010] NSWSC 1014
HEARING DATE(S):	3 September 2010
JUDGMENT DATE :	3 September 2010
JURISDICTION:	Equity Division Probate List
JUDGMENT OF:	Palmer J
EX TEMPORE JUDGMENT DATE:	3 September 2010
DECISION:	Will revoked.
CATCHWORDS:	SUCCESSION – WILLS – STATUTORY REVOCATION – no question of principle.
LEGISLATION CITED:	Succession Act 2006 (NSW) – s 18
CATEGORY:	Principal judgment
PARTIES:	Allen Samuels (Applicant)
FILE NUMBER(S):	SC 2010/209720
COUNSEL:	T.J. Morahan (Applicant)
SOLICITORS:	Lang Noonan Legal (Applicant)

2010/209720 Levy Estate – Application of Samuels

JUDGMENT – Ex tempore

3 September, 2010

1 This is an application pursuant to s 18 of the Succession Act 2006 (NSW) for the revocation of a will of Rebecca Levy, dated 4 May 2010, on the ground that Mrs Levy lacked testamentary capacity at the time she made it. The revocation of the 4 May 2010 will would leave then, as operative, an earlier will made at a time when there is no question as to Mrs Levy's testamentary capacity. The beneficiary of the 4 May 2010 will is a Mr Ian Wheatley.

2 The evidence shows that Mr Ian Wheatley became a tenant of Mrs Levy in her home, some three years ago. There is no relationship otherwise between Mrs Levy and Mr Wheatley; he is not related to her either by blood or by marriage. They did not know each other, apparently, before he became her tenant.

3 Mrs Levy is now 93 years old. She has been diagnosed as having dementia and suffering from severe cognitive impairment. A psychiatrist and a clinical neuro-psychologist have examined her recently. They have come to the conclusion that, although she appears at first impression to be in possession of her faculties, a closer examination reveals a severe cognitive impairment. Both come to the conclusion that, at the time she made the will in question, she lacked testamentary capacity.

4 The subject will was prepared by a solicitor, but the solicitor does not give evidence as to her own investigation of Mrs Levy's testamentary capacity. It is quite possible that the solicitor, who had not met Mrs Levy previously, was deceived by the first impression which apparently Mrs Levy gives of being in possession of her faculties, and did not appreciate Mrs Levy’s true situation.

5 Mr Wheatley has been served with notice of these proceedings. I am satisfied by the evidence of the Plaintiff's solicitor that Mr Wheatley is fully aware of these proceedings and has unequivocally declined to participate, saying that he wishes to have nothing to do with the subject will of Mrs Levy. Therefore, the only person who has an interest in the subject will has disclaimed any such interest.

6 I am satisfied that it is appropriate to grant leave to make this application and appropriate also to deal immediately with the substance of the application.

7 The requirement that Mrs Levy lacked testamentary capacity is amply satisfied by the medical evidence. Accordingly, I make orders in terms of paragraphs 1 and 2 of the Summons.

– oOo –