Brown v Sandhurst Trustees Ltd - [2009] VSC 212

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE
IN THE PROBATE JURISDICTION

COMMERCIAL AND EQUITY DIVISION
IN THE MATTER of the will of DANIEL DUGGAN deceased

PROB 55 of 2006

JOHN BROWN and MAXWELL JAMES SMITH (who sues as executor of the will of Lynette Smith deceased)	Plaintiffs
V
SANDHURST TRUSTEES LTD (which is sued as executor of the will of Daniel Duggan deceased)	Defendant

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JUDGE:	Mandie J
WHERE HELD:	Melbourne
DATE OF HEARING:	20-24, 27-30 April, 1, 4 May 2009
DATE OF JUDGMENT:	4 June 2009
CASE MAY BE CITED AS:	John Brown v Sandhurst Trustees Ltd
MEDIUM NEUTRAL CITATION:	[2009] VSC 212

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WILLS – probate – application for revocation of probate – whether testator lacked testamentary capacity – whether testator made will when subject to operative delusions

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr P. J. Riordan SC with Mr R. H. Miller	Deacons
For the Defendant	Ms C.H. Sparke with Ms L.M. Englefield	O’Farrell Robertson McMahon

HIS HONOUR:

Introduction

The plaintiffs seek orders that the Grant of Probate made to the defendant on 24 August 2006 of the will of Daniel Duggan deceased dated 12 October 2004 be revoked and that the Grant be delivered up to the Registrar of Probates for cancellation.

The ground of the plaintiffs’ application is lack of testamentary capacity at the time of giving instructions for the will in September 2004 and thereafter. The plaintiffs contend that the deceased was not, by September 2004, of sound disposing mind, that he did not dispose of his property with understanding and reason, that he did not recall or understand the claims of his only family members and that he was suffering from mental disorders comprising delusions, hallucinations and Alzheimer’s disease, all of which influenced the terms of his 2004 will. More specifically, the plaintiffs say that the deceased made his 2004 will under three principal operative delusions, namely, that:

(a) his family were just waiting for him to die so that they could get the money;
(b) a great-nephew (Paul Smith) was responsible for the loss of the deceased’s driving licence which resulted in his life being “murdered”;
(c) his niece (Lyn Smith), his nephew (John Brown) and his great-nephew (Paul Smith) were responsible for taking away his independence by putting him in care and taking him from his home.

Daniel Duggan was born on 22 February 1913 and died on 30 June 2006. The deceased never married and left no children. His parents and only sibling, a sister, Bella, predeceased him. Bella died in February 1995. Bella had two children, the first plaintiff, John Brown, and Lynette (or Lyn) Smith who was the second plaintiff but who died on 26 December 2006 and whose estate is now represented by her executor, her husband, Maxwell (or Max) James Smith.

The estate, both at the date of the will and at the date of death, consisted of a residential property at Barnard Street, Bendigo, farming properties, comprising some 659 hectares…

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 Sandhurst Trustees Ltd

Details

AGLC: Brown v Sandhurst Trustees Ltd [2009] VSC 212
Case: [2009] VSC 212
Decision Date: 4 June 2009

CaseChat Overview and Summary

The applicants sought revocation of probate of a will, asserting the deceased lacked testamentary capacity at the time of making the will, due to delusions that she was the victim of a conspiracy. The will left the entirety of her estate to the applicants, her daughters. The defendants opposed the application, arguing the deceased was of sound mind and free from delusions when she executed the will. The matter was heard in the Supreme Court of Victoria.

The court needed to determine whether the deceased was of sound mind and free from delusions when she made the will. This involved considering the medical evidence, the deceased's conduct, and whether the deceased was subject to any delusions at the time of making the will. The court had to weigh the evidence and determine if the deceased had testamentary capacity at the relevant time.

The court found that the deceased had testamentary capacity when she made the will. It found that while the deceased had suffered from delusions, these did not affect her understanding of the nature of making a will or its effect. The court held that the will was validly executed and refused to revoke the grant of probate. The court found that the deceased had the requisite knowledge and approval of the contents of the will and was not subject to delusions that affected her testamentary capacity.

The court refused the applicants' application for revocation of probate and ordered that the grant of probate remain in force.

Orders