Chahine v Wenzler - [2024] VSC 317

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

COMMON LAW DIVISION

TRUSTS, EQUITY AND PROBATE LIST

S PRB 2020 28638

IN THE MATTER of the estate of PAULINA WENZLER, deceased

BETWEEN:

NORMA CHAHINE	Plaintiff
v
ROBERT STEVEN WENZLER	Defendant

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JUDGE:	Watson J
WHERE HELD:	Melbourne
DATE OF HEARING:	9, 10, 11 and 18 April 2024
DATE OF JUDGMENT:	17 June 2024
CASE MAY BE CITED AS:	Chahine v Wenzler
MEDIUM NEUTRAL CITATION:	[2024] VSC 317

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WILLS AND ESTATES – Testamentary Capacity – Whether testator had testamentary capacity at time of making last will – Court satisfied testator had testamentary capacity – Last will of deceased to be admitted to probate – Banks v Goodfellow (1870) LR 5QB 549; Norris v Tuppen [1999] VSC 228.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr W Gillies	Tisher Liner FC Law
For the Defendant	Mr R Wells	The Law Professionals

HIS HONOUR:

Paulina Wenzler made a will on 23 May 2018 (‘the 2018 will’). She died on 28 December 2019. The question in this case is whether at the time of making the will in May of 2018 Ms Wenzler had testamentary capacity or not.

The plaintiff, Norma Chahine, was a neighbour of Ms Wenzler and appointed executor under the 2018 will. She seeks a grant of probate for that will.

The defendant, Mr Robert Wenzler, is one of Ms Wenzler’s nephews and along with his two brothers, Richard Wenzler and Daniel Wenzler, was appointed executor of Ms Wenzler’s estate under an earlier will made on 30 August 2012 (‘the 2012 will’). He opposes the grant of probate for the 2018 will and says that at the time his aunt made that will she lacked testamentary capacity.

In this judgment in order to avoid confusion and without meaning any disrespect, I will refer to members of the Wenzler family by first names. Each of Ms Chahine and Robert referred to Paulina in their evidence as Paula, and in the 2012 will she is described as Pauline. I will refer to her as Paulina.

Paulina did not marry and had no children. She had five brothers and two sisters, all of whom predeceased her. Paulina and Emma, one of her sisters, had resided together at 28 Waiora Road, Rosanna until Emma’s death in 2009. After that Paulina lived at 28 Waiora Road alone until her death in 2019.

Paulina’s brother Peter was the father of Robert, Richard and Daniel. He died in 2001. Peter had been married to Anna (Robert, Richard and Daniel’s mother). Peter and Anna had divorced in 1995.

Paulina also had a niece, Katrina, her brother Michael’s daughter.

The two wills

The 2018 will:

(a) appoints Ms Chahine as executor;

(b) makes specific bequests:

(i) to Dr Ian Wallis in the sum of $80,000;

(ii) to Ms Chahine in the sum of $200,000;

(iii) to Robert Chahine (Ms Chahine’s son) in the sum of $100,000; and

(iv) to Robert in the sum of $50,000; and

(c)…

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 Chahine v Wenzler

Details

AGLC: Chahine v Wenzler [2024] VSC 317
Case: [2024] VSC 317
Decision Date: 17 June 2024

CaseChat Overview and Summary

In the case of Chahine v Wenzler, the dispute arose in relation to the testamentary capacity of the deceased at the time of making their last will. The respondents sought to challenge the validity of the will, arguing that the deceased lacked the requisite mental capacity to execute it. The matter was heard in the Supreme Court of Victoria.

The central legal issue before the court was whether the deceased possessed testamentary capacity at the time of executing the will. Testamentary capacity refers to the mental ability of a testator to understand the nature of their act, the effect of their will, and the extent of their property, and to make a disposition of their property in accordance with their wishes. The court had to determine if the deceased was capable of appreciating these elements at the time of executing the will.

The court found that the deceased had testamentary capacity when executing the will. It relied on the principles established in Banks v Goodfellow and Norris v Tuppen, which provide that a testator need not have perfect mental capacity, but must understand the nature of their act and its effects. The court examined the evidence presented, including medical reports, testimonies from witnesses, and the circumstances surrounding the execution of the will. Ultimately, the court was satisfied that the deceased had the necessary understanding and appreciation to execute the will, thus upholding its validity.

The court ordered that the last will of the deceased be admitted to probate. This decision confirmed the validity of the will and authorised the executors to administer the estate in accordance with the deceased's wishes.

Orders