JUDGE:	McMillan J
WHERE HELD:	Melbourne
DATE OF HEARING:	22–25, 28–31 October 2013, 1, 6 November 2013
DATE OF JUDGMENT:	2 June 2014
CASE MAY BE CITED AS:	Brown v Guss
MEDIUM NEUTRAL CITATION:	[2014] VSC 251

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WILLS — Testamentary capacity — Whether the deceased had capacity to give instructions for a will — Whether the deceased had capacity to execute a will —Court satisfied that the deceased had capacity.

WILLS — Knowledge and approval — Onus of proof to be applied — Suspicious circumstances — Court satisfied that the deceased read over and understood the provisions of the will.

WILLS — Undue influence — Standard of proof — Boyse v Rossborough (1857) 6 HL Cas 1 — Nicholson v Knaggs [2009] VSC 64 (27 February 2009) — Will not affected by undue influence.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr S Newton	Higgins Hearn
For the Defendant	Ms C Sparke SC	Joseph Guss

TABLE OF CONTENTS

Introduction................................................................................................................................... 3

Procedural history...................................................................................................................... 3
The particulars of the allegation of undue influence................................................................... 4
General comments on the evidence............................................................................................. 7
The family................................................................................................................................... 8
The health of the deceased......................................................................................................... 10

The 2005 testamentary intentions............................................................................................. 12

The alleged testamentary intentions of the deceased in 2005.................................................... 12
Conclusions in respect of the testamentary intentions of the deceased in 2005........................ 17

The Hawthorn property............................................................................................................. 20

Alleged improper and dishonest dealings with the Hawthorn property.................................... 20
Conclusions in regard to the allegations raised in respect of the Hawthorn property............... 24

The January 2007 will................................................................................................................. 27

The circumstances of the making of the January 2007 will...................................................... 28
Conclusions in respect of the 2007 will.................................................................................... 29

The January 2010 will................................................................................................................. 30

The circumstances of obtaining instructions for the January 2010 will................................... 30
Mr Northam meets with the deceased and Simon Brown on 19 January 2010........................ 34
Events after the 19 January 2010 meeting with the deceased and Simon Brown..................... 36
The execution of the January 2010 will.................................................................................... 38
Conclusions in respect of the January 2010 will..................................................................... 42

The re-signing of the 2007 will.................................................................................................. 42

Events after the execution of the January 2010 will................................................................. 42
The re-signing by the deceased of her 2007 will on 27 January 2010....................................... 43
Conclusion as to the allegation that the deceased was forced to re-sign her 2007..................... 44

Mr Northam’s retainer................................................................................................................ 44

Events after the re-signing of the 2007 will by the deceased..................................................... 44
Conclusion as to whether Simon Brown forced the deceased to terminate the retainer............ 50

The Dalby property.................................................................................................................... 50

The background to the deceased’s ownership of the Dalby property......................................... 50
The allegation that the deceased was forced to transfer the Dalby property.............................. 51
Antony Guss and Marilla Guss register a caveat over the Dalby property.............................. 56
The application for the removal of the caveat over the Dalby…

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 Brown v Guss

Details

AGLC: Brown v Guss [2014] VSC 251
Case: [2014] VSC 251
Decision Date: 2 June 2014

CaseChat Overview and Summary

In the matter of Brown v Guss, the case was brought before the court to determine the validity of a will left by the deceased. The dispute primarily concerned the deceased's testamentary capacity at the time of creating and executing the will. The court was tasked with assessing whether the deceased had the mental capacity to understand the nature of making a will and to approve its contents. Additionally, the court needed to determine if the deceased had the capacity to execute the will, given the circumstances surrounding its creation.

The legal issues before the court involved two main points. Firstly, whether the deceased possessed the requisite testamentary capacity at the time of giving instructions for the will and executing it. Secondly, whether the deceased had read over and understood the provisions of the will, particularly considering the suspicious circumstances that had been raised. The court also considered the standard of proof required to establish undue influence, referencing established cases such as Boyse v Rossborough and Nicholson v Knaggs.

The court found that the deceased indeed had the necessary testamentary capacity to create and execute the will. The evidence presented satisfied the court that the deceased understood the process of making a will and approved its contents. The court also determined that the deceased had read over and understood the will's provisions, despite the suspicious circumstances. The court held that the standard of proof for undue influence was not met, and the will was not affected by any such influence. The court concluded that the will was valid and should be upheld.

The final orders of the court were that the will left by the deceased was valid and should be admitted to probate. The court found no grounds to invalidate the will on the basis of testamentary capacity or undue influence.

Orders