Anderson v Yongpairojwong – A Foreign Will’s Validity

Amonrat Chanta (‘Amy’) ran a chain of restaurants, ‘Chat Thai’. She had a son, Kulphat Laoyont (‘Pat’), and a daughter, Palisa Anderson. Amy had two wills: one executed in NSW in 2017, and another executed in Thailand in 2020. The NSW will provided for a fairly even split of Amy’s shares in the companies used to operate the Chat Thai chain (the CT Group) and the residue of her estate between Pat and Palisa, whereas the Thai will essentially gave everything to Pat and nothing to Palisa. Palisa claimed that only the NSW will was valid because Amy lacked testamentary capacity at the time of executing the Thai will.

In the lower court, Palisa was unsuccessful in this challenge. The primary judge held that Amy has testamentary capacity and that she did understand and approve of the contents of the Thai will. In making this decision, the primary judge considered expert medical evidence, but accorded it little weight. The judge found that there were no suspicious circumstances around the Thai will as, among other reasons, Amy was able to explain her reasons for the new will, and neither Pat nor Palisa were involved in the process. On these bases, the primary judge found that the Thai will, which largely benefited Pat and disadvantaged Palisa, was valid.

In this hearing, Palisa challenged the findings of the primary judge, alleging, once again, that Amy lacked testamentary capacity and that she did not know and approve of the contents of the Thai will. She was ultimately unsuccessful again on both points.

With respect to the argument that Amy lacked capacity, the Court of Appeal found that the primary judge was correct to disagree with Palisa. The Court found that the primary judge’s weighing of the expert medical evidence to be valid, as “the primary judge did not hold that the expert evidence… was ‘incapable’ of assisting him”, instead, “his Honour weighed [the evidence] against other evidence”, which is a valid approach to evidence. The Court found that the expert evidence should be given little weight as the experts had made their conclusions without examining Amy or having access to her clinical notes. The Court also found that medical notes made by Amy’s doctors did not provide any evidence of her cognitive capacity. After these considerations, the Court of Appeal concluded that there was no real evidence of Amy lacking testamentary capacity.

The Court of Appeal also found that Amy did know and approve of the contents of the Thai will, contrary to Palisa’s argument. The primary judge accepted the expert evidence of Mr Kasemnate (a lawyer in Thailand) that Amy “clearly conveyed her instructions for her new will and did not appear confused” and that there were no suspicious circumstances around the making of the will that would rebut the presumption that Amy knew and approved of the contents of the will. The Court of Appeal agreed with this finding.

By rejecting Palisa’s arguments, the Court of Appeal dismissed her appeal and held that the Thai will was valid.