Brockhurst v Andre Das - [2023] WASC 226

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CHAMBERS

CITATION:   BROCKHURST -v- ANDRE DAS [2023] WASC 226
CORAM:   WHITBY J
HEARD:   19 JUNE 2023
DELIVERED          :   23 JUNE 2023
FILE NO/S:   PRO 4373 of 2022
BETWEEN:   KIM PATRICK BROCKHURST
First Applicant
THOMAS MARTHINUS SMALBERGER
Second Applicant
AND
ANDRE DAS
Defendant

Catchwords:

Probate - Letters of administration - Application for removal of caveat - Section 64 of the Administration Act 1903 (WA) - Test for removal of caveat - Whether the deceased had testamentary capacity to revoke will by destruction

Legislation:

Administration Act 1903 (WA)
Wills Act 1970 (WA)

Result:

Application to remove caveat pursuant to s 64 of the Administration Act 1903 (WA) dismissed

Category: B

Representation:

Counsel:

First Applicant	:	Mr J Yeldon
Second Applicant	:	Mr J Yeldon
Defendant	:	Mr N Siegwart

Solicitors:

First Applicant	:	Fort Knox Legal
Second Applicant	:	Fort Knox Legal
Defendant	:	Birman & Ride

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

De Bruin v De Bruin [2004] WASC 20
Hayden v Bond [2003] WASC 96
Larussa v Carr [2018] WASCA 127
Re Poole (SC (NSW), Young J, 118125/94, 26 April 1996, unreported, BC9601658)

WHITBY J:

Alfred Joseph Jones died on 3 May 2022. I refer to the deceased as Alfred in these reasons, with no disrespect intended. Alfred's wife, Paravathy Devy Jones (Susan), died on 3 August 2016. Alfred did not have any children. Alfred had three sisters, two of whom predeceased him and whom had no children of their own. Alfred has one sister who is still alive, Monica O'Mara. Monica lives in the United Kingdom.
Alfred had a will dated 14 August 2019 (2019 will). Fort Knox Legal had prepared the will in accordance with Alfred's instructions and it was validly executed. The beneficiaries of the will include Susan's nephew, Andre Das, the defendant.
On 10 October 2019, Alfred picked up his 2019 will from the office of Fort Knox Legal and took it home with him. Home for Alfred was an apartment in South Perth. Alfred lived in the apartment alone.
On 9 June 2020, Alfred went to see his lawyer, Mr Smalberger, at Fort Knox Legal. Mr Smalberger was not available. Alfred told the receptionist that he wanted to make some changes to his 2019 will. Alfred made an appointment to see Mr Smalberger the next day. Alfred called Fort Knox Legal the next day and made the appointment for the following day, 11 June 2020. Alfred did not attend that appointment. On 29 June 2020, Alfred called Fort Knox Legal and made an appointment to see Mr Smalberger on 1 July 2020. Alfred did not attend that appointment either.
On 13 October 2020, Alfred was admitted to the delirium ward at Sir Charles Gairdner hospital. On 25 November 2020, Alfred was moved from the hospital into transitional care in Bicton. In February 2021, Alfred was transferred to care in North Fremantle.
On 8 January 2021, the State Administrative Tribunal appointed Mr Kim Brockhurst, Alfred's friend and neighbour,…

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 Brockhurst v Andre Das

Details

AGLC: Brockhurst v Andre Das [2023] WASC 226
Case: [2023] WASC 226
Decision Date

CaseChat Overview and Summary

The case of Brockhurst v Andre Das involved an application to remove a caveat over the estate of the deceased, Alfred Joseph Jones. The applicants, Kim Patrick Brockhurst and Thomas Martinus Smalberger, sought to remove the caveat lodged by the defendant, Andre Das. The applicants argued that Alfred revoked his will by tearing it up, while the defendant contended that Alfred lacked the testamentary capacity to do so. The matter was heard in the Supreme Court of Western Australia in chambers.

The primary legal issue before the court was whether the defendant had satisfied the court that the caveat was not vexatious. The court had to determine if there were circumstances warranting further investigation by the court. The applicant's primary argument was that Alfred intended to revoke his will, which was supported by the fact that he took his will from his lawyers and it was found torn up in his apartment. The defendant countered that Alfred may have lacked the testamentary capacity to revoke his will, citing evidence of his declining mental health.

Justice Whitby found that while it was reasonable to infer that Alfred tore up the will, the presumption of revocation by destruction was weakened by evidence of his declining mental health. Alfred was 84 years old, had difficulty recognising people and engaging in conversation, was admitted to hospital in a delirium ward, and was later appointed a plenary administrator and limited guardian. The court held that the caveat was not vexatious as there were circumstances that warranted further investigation into Alfred's testamentary capacity at the time he tore up the will. The application to remove the caveat was dismissed, and the matter was to proceed by way of solemn form proceedings.

In conclusion, the court dismissed the application to remove the caveat, finding that the defendant had satisfied the court that the caveat was not vexatious and there were circumstances warranting further investigation into Alfred's testamentary capacity. The matter was to proceed by way of solemn form proceedings.

Orders