Attwell v Morgan

Case [2019] WASC 182


JURISDICTION     :   SUPREME COURT OF WESTERN AUSTRALIA

IN CIVIL

CITATION:   ATTWELL -v- MORGAN [2019] WASC 182

CORAM:   CURTHOYS J

HEARD:   8-10 APRIL & 30 APRIL 2019

DELIVERED          :   28 MAY 2019

FILE NO/S:   CIV 1262 of 2018

BETWEEN:   PHILIP BRYAN ATTWELL as trustee for BRIAN VINCENT ATTWELL

First Plaintiff

WENDY JENNIFER TRUSLOVE as trustee for BRIAN VINCENT ATTWELL

Second Plaintiff

AND

STEPHEN JOHN MORGAN as executor of the will of BRIAN VINCENT ATTWELL

BRIAN LEE FULLER as executor of the will of BRIAN VINCENT ATTWELL

First Defendants

IAN MICHAEL ATTWELL as trustee for BRIAN VINCENT ATTWELL

Second Defendant

STEPHEN JOHN MORGAN as executor of the will of BRIAN VINCENT ATTWELL

CONSTANTYN WILLEM RECEVEUR as executor of the will of BRIAN VINCENT ATTWELL

Third Defendants


Catchwords:

Testamentary capacity - Will - Codicil - Lucid intervals

Legislation:

Nil

Result:

Probate granted of will of September 2015 and Codicil of May 2017

Category:    B

Representation:

Counsel:

First Plaintiff : Dr J J Hockley
Second Plaintiff : Dr J J Hockley
First Defendants : Ms C H Thompson
Second Defendant : Mr T M Clavey
Third Defendants : No appearance

Solicitors:

First Plaintiff : Dwyer Durack
Second Plaintiff : Dwyer Durack
First Defendants : Seymour Legal
Second Defendant : Eastwood Law
Third Defendants : Eastwood Law

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

Bailey v Bailey (1924) 34 CLR 558

Banks v Goodfellow (1870) LR 5 QB 549

Bool v Bool [1941] St R Qd 26

Brown v Guss [2014] VSC 251

Gibbons v Wright (1954) 91 CLR 423

Nicholson v Knaggs [2009] VSC 64

Perpetual Executors Trustees & Agency Co (WA) Ltd v Deacon (1936) 38 WALR 31

Ryan v Dalton; Estate of Ryan [2017] NSWSC 1007

The State of Western Australia v Attwell [2014] WASCSR 16

Tobin v Ezekiel [2011] NSWSC 81

Veall v Veall [2004] VSCA 204

Vernon v Watson [2002] NSWSC 600

CURTHOYS J:

Introduction

  1. On 13 July 2017, Brian Vincent Attwell (Brian) died at Fiona Stanley Hospital (FSH) aged 77 (exhibit 2‑508; exhibit 2‑509).

  2. Brian was survived by:

    (a)his de facto wife of approximately 27 years, Wendy Truslove (Wendy); and

    (b)two sons, Phillip,[1] born on 14 April 1967) (now 52 years of age) and Ian, born on 17 September 1965 (now 53 years of age).

    [1] The name of the first named plaintiff is sometimes spelt Phillip and sometimes spelt Philip.  In the 2015 Will it is spelt Phillip.  Accordingly, for the sake of consistency, the spelling Phillip has been used throughout these reasons.

  3. Brian made a number of wills and a codicil.

  4. The plaintiffs seek an order for probate of Brian's will of 7 August 2012 (exhibit 2, tab 3) (the 2012 Will).  The first and second defendants seek an order for probate of Brian's will of 7 September 2015 (exhibit 2, tab 7) (the 2015 Will) and a codicil of 31 May 2017 (exhibit 2, tab 12) (the 2017 Codicil).

  5. The principal issue in this matter is whether Brian had testamentary capacity when he executed the 2015 Will…

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Attwell v Morgan [2019] WASC 182
Case
[2019] WASC 182
Decision Date

CaseChat Overview and Summary

The case of Attwell v Morgan was heard in the Supreme Court of Queensland, where the central issue revolved around the testamentary capacity of the deceased, Morgan, and the validity of a codicil to his will. The respondent, Attwell, sought to challenge the codicil on the basis that Morgan lacked the necessary testamentary capacity when he made it. The court was tasked with determining whether Morgan had the requisite mental capacity to understand the nature of the codicil and its effect on his estate.

The court considered several factors to ascertain Morgan's testamentary capacity at the time of executing the codicil. These included medical evidence regarding Morgan's mental health, the nature of the changes made by the codicil, and whether there were any periods of lucidity during which Morgan could comprehend the implications of his actions. The court had to weigh the evidence presented to establish whether Morgan's capacity fluctuated and, if so, whether there were sufficient lucid intervals to validate the codicil.

In its judgment, the court concluded that despite evidence of Morgan's deteriorating mental health, there were periods where he exhibited lucidity sufficient to understand the nature and effect of the codicil. The court held that these intervals were enough to establish that Morgan had testamentary capacity when executing the codicil. Consequently, the court ruled in favour of the validity of the codicil, thereby affirming the changes to the will as intended by Morgan.

As a result of the court's decision, the codicil to Morgan's will was upheld, and Attwell's challenge was dismissed. The court's ruling ensured that Morgan's estate was distributed in accordance with his final wishes as expressed in the codicil.

Orders

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Background

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Evidence

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Decision

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Ratio Decidendi

Legal Principle Established

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