NEW SOUTH WALES COURT ISSUES JUDGEMENT FOR ISABELLE AGNES PEACOCK V/S GEOFFREY KNOX, ET AL. CASE

Australia, Aug. 23 -- New South Wales Land and Environment Court issued text of the following judgement on July 23:

1. WARD P: This matter involves a dispute as to the estate of the late Mrs Eva Easton, who died aged 89 on 11 September 2021; in particular, as to the deceased's testamentary capacity at the time, and her knowledge and approval, of the Will ultimately admitted to probate (the 2020 Will). The first respondent, Mr Geoffrey Knox, a solicitor, is one of the executors appointed under the 2020 Will and in that capacity made an application for probate of the 2020 Will. The second respondent, the Sydney Opera House Trust, is the sole beneficiary under the 2020 Will.

2. The deceased's ex-husband had pre-deceased her and she had no children (nor, to her knowledge, any living relatives). The appellant, Mrs Isabelle Peacock, was the sole beneficiary named in the deceased's previous May 2019 Will (the 2019 Will). The appellant challenged the deceased's capacity to make the 2020 Will ([3] of her defence) and the deceased's knowledge and approval of that Will ([4] of her defence), by the latter expressly contending that suspicious circumstances afforded the making of the 2020 Will. Those suspicious circumstances, as particularised at [4](a)-(j) of the defence, raise only three matters relating to the actual circumstances of execution of the 2020 Will (particulars (e)-(g)), the remaining particulars (after repeating the matters particularised in respect of the allegation of lack of testamentary capacity) relate to the appointment of a financial manager for the deceased proximate to the making of the 2020 Will and to events after the making of the Will, as well as the deceased not having previously expressed to the appellant an interest in the Sydney Opera House. In oral submissions on the appeal, emphasis was placed on the deceased's frailty, anxiety, and the fact that she was in a nursing home (AT 5.4-9).

3. The appellant, by her amended first cross-claim, sought orders that probate of the 2019 Will be granted to her (relief for which she here contends if her appeal is successful) though in reply both orally (AT 60.37-32) and in writing (submissions at [12]) the appellant denies that she "propounded" that Will. The appellant also made various alternative claims in her cross-claim (alleging the existence of a testamentary contract for breach of which she sought damages and invoking the principles of promissory estoppel) but at the end of the hearing at first instance those alternative claims were not pressed.

4. On 8 August 2024, the primary judge, Hmelnitsky J, published his reasons, concluding that the deceased had capacity to make the 2020 Will (see Knox v Peacock [2024] NSWSC 976, the primary judgment, at [288]) and made orders granting probate of that Will in solemn form to the first respondent. As the respondents here concede, his Honour did not separately address the question of knowledge and approval of the 2020 Will. In obiter, his Honour observed that, had he accepted the whole of the evidence of the jointly appointed expert (Dr Lonie) on the issue of capacity, he would not have been willing to make an order for probate in relation to the 2019 Will as that same evidence would have given rise to a doubt as to the deceased's capacity to make that earlier Will (see [303] of the primary judgment).

5. The appellant challenges his Honour's decision and, as adverted to above, seeks orders from this Court admitting the 2019 Will to probate in solemn form (see Notice of Appeal filed 7 November 2024). The first respondent has filed a Notice of Contention seeking to affirm the primary judge's decision on the ground there set out (relating to the issue of knowledge and approval) (see below).

6. In a subsequent judgment (Knox v Peacock (No 2) [2024] NSWSC 1372, the costs judgment), his Honour made orders to the effect that the appellant pay the first respondent's costs of the proceedings on the ordinary basis and that any shortfall in the costs recovered pursuant to that order be paid from the deceased's estate on the indemnity basis. The appellant challenges various findings relevant to the award of costs against her personally.

7. For the reasons set out below, the appeal should be dismissed with costs.

*Rest of the document can be viewed at: (https://www.caselaw.nsw.gov.au/decision/1983062d4bad4eab7ccfc7c3)

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