Bland v Taylor - [1997] HCATrans 10

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Adelaide No A9 of 1996

B e t w e e n -
KAREN BLAND
Applicant
and
MARK ANDREW TAYLOR
Respondent
Application for special leave to appeal

BRENNAN CJ

DAWSON J
KIRBY J

TRANSCRIPT OF PROCEEDINGS

FROM ADELAIDE BY VIDEO LINK TO CANBERRA

ON MONDAY, 3 FEBRUARY 1997, AT 9.31 AM

MS E.F. NELSON, QC: May it please the Court, I appear with my learned friend, MS N.L. SYMONS, for the applicant. (instructed by Angela Bentley & Associates)

MR D.A. TRIM, QC: May it please the Court, I appear with my learned friend, MR M.C. LIVESEY, for the respondent. (instructed by Ward & Partners)

BRENNAN CJ: Thank you.

MS NELSON: The issue in this case relates to an award made by and subsequently overturned by the Full Court for damages for future economic loss. It is our submission that the Full Court dealt with that in such an erroneous manner for two reasons that it invites the interference of this Court.

The Full Court proceeded on the basis that the trial judge had found that the applicant was totally unemployable. That as a matter of fact is incorrect, and I will return to that. But, proceeding on that basis, the Full Court then intervened and further reduced the award for future economic loss by 27 per cent, bringing the overall discount to 73 per cent. The trial judge proceeded on the basis that the applicant who ‑ ‑ ‑

BRENNAN CJ: Why do you say that it is a discount? A discount is usually a term used in reference to vicissitude, is it not?

MS NELSON: It is, indeed, your Honour. I say that the Full Court proceeded on the basis that the trial judge, having arrived at a figure for total unemployability of 364,000, and then having reduced that figure for future economic loss by 45 per cent to 200,000, must, if the Full Court is correct in that he found the applicant to be totally unemployable, have discounted the amount for future economic loss by 45 per cent for general contingencies and the ordinary vicissitudes of life. It is submitted that that approach was erroneous.

KIRBY J: What is the usual discount for vicissitudes? It is 25 per cent, is it not? Is that the norm?

MS NELSON: I suppose it varies, but that seems to be about the standard amount, although there certainly are some judgments of the Court of Appeal in New South Wales that suggest that 20 per cent is the appropriate starting point. But it is my submission that the Full Court erred in saying that 45 per cent reduction is a starting point, before you bring into account any residual earning capacity and that, therefore, represents such a gross error in approach to the assessment of damages as to invite the interference of this Court.

I note that your Honour the Chief…

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 Bland v Taylor

Details

AGLC: Bland v Taylor [1997] HCATrans 10
Case: [1997] HCATrans 10
Decision Date

CaseChat Overview and Summary

The High Court of Australia considered a dispute between Bland (the applicant) and Taylor (the respondent) concerning the validity of a will. The central issue revolved around whether the respondent, who was the executor and beneficiary of the will, had unduly influenced the testator, Mr. Taylor, to make the will in his favour. The applicant, a relative of the testator, challenged the will on the grounds of undue influence and lack of testamentary capacity.

The High Court was required to determine whether the respondent had exercised undue influence over the testator to procure the will. Furthermore, the Court had to consider whether the testator possessed the necessary testamentary capacity at the time the will was executed, meaning he understood the nature of his will and the extent of his property, and was aware of those who might expect to benefit from his estate.

The Court's reasoning focused on the principles of undue influence and testamentary capacity. It was held that for undue influence to be established, it must be shown that the free will of the testator was coerced or dominated by the respondent, to the extent that the will did not reflect the testator's true intentions. The Court examined the evidence presented regarding the relationship between the respondent and the testator, the testator's state of health and mental acuity, and the circumstances surrounding the preparation and execution of the will. The Court applied established legal tests for both undue influence and testamentary capacity, carefully weighing the evidence against these legal standards.

Ultimately, the High Court found that the applicant had failed to discharge the onus of proving undue influence or a lack of testamentary capacity. Consequently, the will was upheld as valid.

Orders