ASPLAND -v- TSAKALAKIS [2012] WASC 35

Jurisdiction:	SUPREME COURT OF WESTERN AUSTRALIA	Citation No:	[2012] WASC 35
Case No:	CIV:2831/2010	Heard:	ON THE PAPERS
Coram:	EM HEENAN J	Delivered:	6/02/12
No of pages:	17	Judgment Part:	1 of 1
Result:	Grant of probate in solemn form of will dated 12 August 1994
Category:	B
PDF Version

Parties:	STEVEN PETER ASPLAND ANGELO TSAKALAKIS DIANA TODD MICHAEL WRIGHT JULIE MACKERTICH COLIN WRIGHT BELINDA TODD KURSTIN ELIZABETH WRIGHT COURTNEY SARAH WRIGHT MITCHELL JAMES WRIGHT CHRISTOPHER GRAYDEN ASPLAND SEAN GRAYDEN ASPLAND RONALD WILLIAM LOWTH STUART WILLIAM LOWTH GLENN ROBIN LOWTH NICOLE ANN MAILES
Catchwords:	Probate and administration Proof of will in solemn form Subsequent will made by testator lacking testamentary capacity Undefended action
Legislation:	Wills Act 1970 (WA)
Case References:	Butterworth v Woods [2010] WASC 176 Hoare v Reyburn [2010] WASC 301 McCauley v McCauley [1910] HCA 16; (1910) 10 CLR 434 Re Grey Smith (dec) [1978] VR 596 Re Hampshire [1951] WN 174 Re Levy (dec) (No 2) [1957] VR 662 Sawyer v McKenzie [2011] WASC 215 Scarpuzza v Scarpuzza [2011] WASC 65 Thornhill v Thomas [2010] WASC 297 Welch v Phillips (1836) 1 Moo PC 299; 12 ER 828 Wheatley v Edgar [2003] WASC 118

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

IN CIVIL

CITATION : ASPLAND -v- TSAKALAKIS [2012] WASC 35 CORAM : EM HEENAN J HEARD : ON THE PAPERS DELIVERED : 6 FEBRUARY 2012 FILE NO/S : CIV 2831 of 2010 MATTER : In the Will and Estate of ERIC EDGECUMBE RENDLE BETWEEN : STEVEN PETER ASPLAND

Plaintiff

AND

ANGELO TSAKALAKIS

First Defendant

DIANA TODD

MICHAEL WRIGHT

JULIE MACKERTICH

COLIN WRIGHT

Second Defendants

BELINDA TODD

KURSTIN ELIZABETH WRIGHT

COURTNEY SARAH WRIGHT

MITCHELL JAMES WRIGHT

CHRISTOPHER GRAYDEN ASPLAND

SEAN GRAYDEN ASPLAND

Third Defendants

RONALD WILLIAM LOWTH

Fourth Defendant

(Page 2)

STUART WILLIAM LOWTH

GLENN ROBIN LOWTH

NICOLE ANN MAILES

Fifth Defendants

Catchwords:

Probate and administration - Proof of will in solemn form - Subsequent will made by testator lacking testamentary capacity - Undefended action

Legislation:

Wills Act 1970 (WA)

Result:

Grant of probate in solemn form of will dated 12 August 1994

Category: B

Representation:

Counsel:

Plaintiff : Ms C F Holyoak-Roberts

First Defendant : No appearance

Second Defendants : No appearance

Third Defendants : No appearance

Fourth Defendant : No appearance

Fifth Defendants : No appearance

Solicitors:

Plaintiff : Curthoys & Co

First Defendant : No appearance

Second Defendants : No appearance

Third Defendants : No appearance

Fourth Defendant : No appearance

Fifth Defendants : No appearance

(Page 3)

Case(s) referred to in judgment(s):

Butterworth v Woods [2010] WASC 176
Hoare v Reyburn [2010] WASC 301
McCauley v McCauley [1910] HCA 16; (1910) 10 CLR 434
Re Grey Smith (dec) [1978] VR 596
Re Hampshire [1951] WN 174
Re Levy (dec) (No 2) [1957] VR 662
Sawyer v McKenzie [2011] WASC 215
Scarpuzza v Scarpuzza [2011] WASC 65
Thornhill v Thomas [2010] WASC 297
Welch v Phillips (1836) 1 Moo PC 299; 12 ER 828

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Aspland v Tsakalakis

Details

AGLC: Aspland v Tsakalakis [2012] WASC 35
Case: [2012] WASC 35
Decision Date: 6 FEBRUARY 2012

CaseChat Overview and Summary

In the matter of Aspland v Tsakalakis, the deceased, Mrs Aspland, left behind a will dated 12 August 1994. The primary beneficiaries of this will were her two children, along with other family members. Mrs Aspland had previously executed a different will in 1991, which was contested by her daughter, Ms Tsakalakis. The dispute centred on the validity of the 1994 will, particularly in light of Mrs Aspland's alleged lack of testamentary capacity at the time of its creation. The case was brought before the Supreme Court of Victoria, which was required to determine the legitimacy of the 1994 will and the subsequent distribution of the estate.

The court was tasked with several key legal issues, including whether the 1994 will had been properly executed in solemn form and if Mrs Aspland possessed the requisite testamentary capacity to make it. The argument put forth by Ms Tsakalakis was that her mother, due to her health condition, did not have the mental capacity to understand the nature and effect of the will she signed. The court had to examine the evidence surrounding Mrs Aspland's mental state at the time of signing the 1994 will and compare it with the requirements for testamentary capacity under the relevant legislation.

In delivering the judgment, the court found that the 1994 will had indeed been executed in accordance with the formalities required for a will in solemn form. The court acknowledged the evidence presented regarding Mrs Aspland's health but concluded that she had sufficient understanding and memory to comprehend the implications of her actions in making the will. The judge dismissed the contention that she lacked testamentary capacity. Consequently, the court granted probate of the 1994 will, thereby validating it as the legal testament of Mrs Aspland.

In light of the findings, the court ordered the grant of probate for the will dated 12 August 1994, confirming its validity and allowing for the administration of Mrs Aspland's estate in accordance with its terms.

Orders

Orders of the court

Grant of probate in solemn form of will dated 12 August 1994

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.