On 13 July 2017, Brian Vincent Attwell (Brian) died at Fiona Stanley Hospital (FSH) aged 77 (exhibit 2‑508; exhibit 2‑509).
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.
Brian made a number of wills and a codicil.
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).
The principal issue in this matter is whether Brian had testamentary capacity when he executed the 2015 Will…
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.
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Details
AGLC
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.