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The Court of Appeal upheld the rectification of a will to ensure property proceeds passed to the testator's brother rather than the residuary estate.
The appellant, Bishop Girgis, appealed a lower court decision that interpreted and rectified a will to distribute proceeds from a property sale to the estate of the deceased's brother, rather than to the residuary beneficiary (Bishop Girgis).
The Court of Appeal dismissed the appeal, upholding the rectification on the basis that it gave effect to the testator's plain intention, despite disagreeing with the application judge's specific analytical path.
Costs were awarded against the appellant.
The court declared the respondent incapable and appointed her husband as partial guardian of her person to facilitate medical assessment.
The applicant sought court advice and direction regarding the mental capacity of his wife, the respondent, Anna Naccarato, to manage her property and personal care.
The application also sought the release of a Continuing Power of Attorney for Property (CPOAP) and a Power of Attorney for Personal Care (POAPC) to the applicant, and his appointment as a partial, time-limited guardian of the respondent's person.
The court found the respondent incapable of managing her property and personal care (specifically health care, shelter, and safety) based on anecdotal evidence from family members and section 3 counsel, without requiring a formal capacity assessment.
The court ordered the release of the CPOAP to the applicant and appointed him as partial, time-limited guardian of the respondent's person with custodial and apprehension powers, but declined to order the release of the POAPC due to lack of evidence regarding its release conditions.
