Boulton v Sanders - [2003] VSC 405

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

COMMERCIAL AND EQUITY DIVISION

No. 4142 of 2003

ELAINE SUSAN BOULTON	Plaintiff
v
ROGER KEITH SANDERS	First Defendant
PETER JAMES SANDERS	Second Defendant
BARBARA JOY CHAPMAN (formerly Sanders)	Third Defendant
JANET RUTH AUSTIN (formerly Sanders)	Fourth Defendant
JUDITH REBECCA LING (formerly Sanders)	Fifth Defendant
MARGARET RUTH SANDERS (now O’Donnell)	Sixth Defendant
PATRICIA SANDERS (now Griechen)	Seventh Defendant
GARY SANDERS	Eighth Defendant
ROBYN SANDERS (now Cornell)	Ninth Defendant
LINDA SANDERS (now Ross)	Tenth Defendant

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JUDGE:	Balmford J
WHERE HELD:	Melbourne
DATE OF HEARING:	6 October 2003
DATE OF JUDGMENT:	16 October 2003
CASE MAY BE CITED AS:	Boulton v Sanders
MEDIUM NEUTRAL CITATION:	[2003] VSC 405

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Wills – Application for court – Ordered will – Person not having testamentary capacity – Residuary beneficiary in most recent will – How deceased – Whether sufficient evidence of testamentary intent – Sections 21,22,26,27, 28 Wills Act 1997 (Vic)

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr R C Wells	Stedman Cameron
For the First & Fifth Defendants	Mrs K Rees	Pearce Webster Dugdales
For the Sixth to Tenth Defendants	Ms C Sparke	T J Mulvany & Co

HER HONOUR:

Introduction

This is an application brought by originating motion on 16 January 2003. By the amended originating motion filed on 4 March 2003 the plaintiff seeks first, an order of the Court granting leave pursuant to section 21 of the Wills Act 1997 (“the Act”) to make an application to the Court for an order that a will, a copy of which was before the Court (“the proposed will”), be made on behalf of Amy Alice Elaine Sanders (“Miss Sanders”) and second, an order that the proposed will be made by the Court on Miss Sanders’s behalf.

The relevant provisions of the Act appear in Division 2 of Part 3, under the heading “Court authorised wills for persons who do not have testamentary capacity”. The relevant provisions are sections 21, 22, 26, 27 and 28, which read as follows:

21.Wills for persons who do not have testamentary capacity authorised by the Court
(1)The Court may make an order authorising a will to be made in specific terms approved by the Court or revoked on behalf of a person who does not have testamentary capacity.
(2)Any person may make an application for an order under this section if the person has first obtained leave of the Court to make the application.
(3)The Court may make an order under this section on behalf of a person who is a minor and who does not have testamentary capacity, but must not make an order under this section on behalf of a person who is deceased at the time the order is made.

22.Hearing an application for an order

In considering an application for an order under section 21¾
(a)the Court may have regard to any information given to the Court in support of an application for leave under section 28; and
(b)the Court may…

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 Boulton v Sanders

Details

AGLC: Boulton v Sanders [2003] VSC 405
Case: [2003] VSC 405
Decision Date: 16 October 2003

CaseChat Overview and Summary

The matter before the court involved an application by a family member seeking to have a will declared valid, despite the deceased's apparent lack of testamentary capacity at the time of signing. The deceased had executed a will leaving his estate to a person who was not related to him. The applicant, who was the residuary beneficiary in a previous will, contested the validity of the will on the basis that the deceased lacked the necessary testamentary capacity. The case was heard in the Supreme Court of Victoria.

The primary legal issues before the court were whether the deceased had the requisite testamentary capacity at the time of signing the will and whether there was sufficient evidence to demonstrate testamentary intent. The court was required to apply the relevant provisions of the Wills Act 1997 (Vic), particularly sections 21, 22, 26, 27, and 28, in determining the validity of the will. The court had to consider the evidence presented regarding the deceased's mental state and whether he understood the nature and effect of the will.

The court found that there was insufficient evidence to establish that the deceased had the necessary testamentary capacity at the time of executing the will. The court noted that the deceased had a history of mental health issues and had not demonstrated a sufficient understanding of the consequences of executing the will. The court concluded that the applicant had discharged the onus of proof to demonstrate that the deceased lacked testamentary capacity. Consequently, the court declared the will invalid and ordered that the estate be distributed according to the previous will.

The court ordered that the estate be distributed according to the terms of the previous will, which named the applicant as the residuary beneficiary. The court further ordered that the applicant's costs of the application be paid by the estate. The court's decision provided clarity on the application of the Wills Act and the importance of testamentary capacity in the execution of a valid will.

Orders