‘There is no possibility of mistaking midnight for noon; but at what precise moment twilight becomes darkness is hard to determine’ - Lord Cranworth, 1857

The above citation was referenced by Justice Hallen in the opening paragraphs of his judgment on 6 May 2021 in Starr v Miller. Nancy Starr passed away at 72 years of age in May 2018, leaving four adult daughters who bitterly fought over her Estate, which was about $8,600,000. Two hearings were conducted over six days in relation to her Estate. Nancy’s final Will was made in 2012, and probate was granted expeditiously after her death in October 2018.

Background

Susan Starr (adult daughter of the deceased) commenced proceedings, putting forward a 2006 Will of her mother, seeking the court revoke the grant of probate made for the 2012 will and issue a grant of probate on the 2006 will. Susan also filed a family provision claim in relation to the 2012 Will, in case her application for revocation of the 2012 Will was unsuccessful.

As the contents of the 2006 and 2012 Wills were different, Margo Miller (adult daughter of the deceased) filed a cross-claim for family provision, in the event that the 2012 Will was revoked. Belinda Atlee and Emma Buckley (adult daughters of the deceased) also filed a family provision claim. An agreement was reached between all of the daughters, the morning that hearing was to commence.

Essentially, the 2006 Will left Nancy’s Estate equally between her four daughters. Nancy later made her 2012 Will as she was desirous of upholding her late husband’s wishes that the farm would remain a viable area. The 2012 Will provided that Margo would retain the farm, being two properties worth just under $7,000,000, whilst her other assets would go between Susan, Belinda and Emma.

Decisions

Justice Hallen was required to decide whether Nancy had testamentary capacity at the time she made the 2012 Will, and if she knew and approved of the contents of the 2012 Will. Susan led evidence that the deceased had Alzheimer’s disease.

The solicitor who prepared both the 2006 and 2012 Wills gave evidence. The witnesses to Nancy signing both Willa provided affidavits which satisfied the court both had been duly executed before 2 witnesses, as required by the Succession Act 2006 (NSW). Evidence was also provided by Nancy’s accountant; a nurse who attended upon Nancy; and an Agricultural Consultant who had prepared a financial report for the farming operations run through Nancy’s Trust.

A number of documents regarding Nancy’s medical condition were filed in evidence. Both Nancy’s accountant and lawyer filed supporting documents, going to the events that lead up to Nancy ultimately executing the 2012 Will.

Nancy advised her lawyer that she had been diagnosed with early-stage dementia at the time she called to make an appointment to update her Will. Her lawyer subsequently wrote to Nancy’s GP of 12 years, requesting his opinion as to whether Nancy has sufficient capacity, to which the reply was affirmative. The solicitor also recorded the meeting during which he read out the well, and a transcript of that recording was filed forming evidence in these proceedings.

After consideration of all the evidence, Justice Hallen found that the deceased had capacity, and did know and approve the contents of her Will.

Margo’s evidence contended that Nancy loved the rural way of life. Susan’s evidence contended that Nancy was depressed for many years and had been a victim of domestic violence (perpetrated by her deceased husband).

He was also required to decide whether a family provision order from the deceased’s estate should be made for Susan, and for Margo. As he found that the 2012 Will was upheld, it was unnecessary to determine Margo’s cross-claim for provision that was to be in relation to the 2006 Wil only.

He found that provision of $750,000 should be made for Susan, on the basis of her needs, current assets and financial resources, and that a wise and just will-maker would have made greater provision for an adult child when considering that adult child’s own property is nominal.

In reaching that decision, Justice Hallen considered the deceased’s wish for the two farming properties to be bequeathed to Margo, despite this providing an even greater share of her estate to Margo, noting that Nancy was entitled to provide different shares of her Estate between her children.

Subject to appeal

Susan was not satisfied with Justice Hallen’s decision and lodged an appeal. She maintained that the 2012 Will should not be valid and that the court erred in finding that Nancy had capacity. She submitted five grounds of appeal, all of which were rejected by the three appellate court Judges. On 29 March 2022, Susan’s appeal was dismissed and she was ordered to pay costs of the appeal.

*Disclaimer: This is intended as general information only and not to be construed as legal advice. The above information is subject to changes over time. You should always seek professional advice before taking any course of action.*