Anderson v Yongpairojwong [2023] NSWSC 1359 was a contested probate application involving two Wills made by the testatrix: one in NSW in 2017 (the Australian Will) and one in Thailand in 2020 (the Thai Will). Both Wills dealt with the same property, appointed the same executor, and distributed beneficial entitlements to the plaintiff and second defendant, albeit to different extents.
In November 2018, the testatrix was diagnosed with lung cancer, which later spread to her brain. By June 2020, when the Thai Will was executed, the testatrix had undergone radiotherapy and chemotherapy treatments and was taking numerous medications and supplements for her cancer.
The plaintiff claimed that the testatrix was not of sound mind when executing the Thai Will due to the physical and mental effects of her treatments. Separately, she argued that there were suspicious circumstances surrounding the Thai Will’s execution, casting doubt on whether the testatrix had the necessary knowledge and approval.
The parties needed to establish the jurisdiction of the Supreme Court of New South Wales to hear the dispute, despite the Thai Will being made in another country. It was not disputed that the testatrix considered Australia her permanent home at the time of her death.
If the Thai Will was validly executed under Thai Law, did it comply with the legal requirements outlined in the Succession Act 2006 ( NSW) (the Act)?
Section 6 of the Act provides that a foreign Will must be “in writing” and “signed” by the testatatrix, with two or more witnesses present who signed it themselves in the testatatrix’s presence.
‘the common law has long held that a signature is not necessarily the writing in of a name, but may be any mark which identifies it as the act of the party’ Morton v Copeland(1855) 16 CB 517 at 535
The testatrix marked the Thai Will with her thumbprint, and two witnesses signed it. As a thumbprint is considered a signature, the Thai Will was validly executed under Thai law, meeting s 48 of the Act for Wills made overseas.
The majority of the plaintiff’s evidence focused on her observations of the testatrx’s changes during the last years of her life while battling cancer, including noticeable repetitions in conversations, bouts of confusion, illness, and needing assistance for tasks she had previously been capable of performing.
“It is unsurprising that a person in Amy’s position, undergoing both radiotherapy and chemotherapy for brain cancer, would experience these variable conditions…On balance, however, I am comfortably satisfied that Amy had testamentary capacity in the period immediately surrounding 24 June 2020.”
Additionally, the plaintiff provided testimony from two medical experts who did not see or examine the testatrix, nor were they offered the advantage of reviewing lay witnesses’ statements or relevant videos. Both experts received incomplete medical records and noted the absence of observations of any cognitive impairment or cognitive side effects of treatment.
“…the opinions of expert witnesses as to whether the testator was competent or not competent, while not without weight, cannot be decisive as to testamentary capacity at the relevant times. The Court must judge the issue from the facts disclosed by the entire body of evidence, including the observations of lay and professional witnesses who knew and saw the testatrix when she made the relevant wills and codicils.” Nicholson v Knaggs [2009] VSC 64 at [41] per Vickery J
The Court found the expert reports to be speculative and of limited value due to the lack of day-to-day observations and the absence of various notes. Instead, the Court relied on lay witnesses who testified that the testatrix remained involved in managing her business, including making decisions about staff wages, instructing social media campaigns, designing menus, and refusing the plaintiff’s request to open a new restaurant.
On 10 November 2023, the Supreme Court of New South Wales dismissed the defendant’s application, determining that there was “compelling evidence” that the testatrix was in a good mood during the Thai lawyers’ visit. She had the capacity to sign the Thai Will and understood and agreed to its contents.
Based on the testimony of the lay witnesses, the Court was convinced that the testatrix had testamentary capacity and granted probate for the 2020 Will
As the Thai Will was considered a valid testamentary instrument that overrode the Australian Will, the plaintiff also made a separate claim for family provision. The Court considered whether it should provide further provision for the plaintiff’s proper maintenance and support.
Subsequently, Pat filed a cross-claim seeking Letters of Administration of the Thai Will or that the named executor be granted Probate of the Thai Will.
Even though the plaintiff received a smaller inheritance from the Thai Will, it was still deemed significant at approximately $2.5 million. Nevertheless, she requested that the court grant further provision.
The Court rejected the plaintiff’s case and authorised the execution of the Thai Will to the designated executor.
Anderson v Yongpairojwong [2024] NSWCA 220
The Appellant appealed on several grounds, one of which was that the primary judge made a mistake by (i) determining that Pat had proven that the testatrix had testamentary capacity when she signed the Thai Will and (ii) stating that the testatrix was aware of and agreed with its contents.
The NSW Court of Appeal held that the appellant failed to demonstrate an error in the primary judge’s reasoning. Similarly, the primary judge was correct in attributing minimal weight to the expert medical evidence in determining the testatrix’s cognitive capacity because they did not examine her. Additionally, medical experts’ reports did not consider various communications by the testatrix shortly after the execution of the Thai Will or lay evidence bearing upon the testatrix’s cognition at the execution of the Thai Will.
The testatrix’s medical records did not support a lack of testamentary capacity. The Court of Appeal also held that the primary judge correctly found no suspicious circumstances surrounding the making of the Thai Will and demonstrated a range of evidence that the testatrix knew and approved its contents.