Challen v Pitt

Case [2004] QSC 365

SUPREME COURT OF QUEENSLAND

CITATION:

Challen v Pitt & Anor [2004] QSC 365

PARTIES:

PETER LESLIE CHALLEN (AS EXECUTOR OF THE WILL OF HANNAH MABEL DUNNING, DECEASED)
(plaintiff)
v
JAYNE LESLEY PITT
(first defendant)
&
HELEN BICHEL
(second defendant)

FILE NO/S:

S140 of 2003

DIVISION:

Trial Division

PROCEEDING:

Trial

ORIGINATING COURT:

Supreme Court

DELIVERED ON:

14 October 2004

DELIVERED AT:

Brisbane

HEARING DATE:

26, 27, 28, 31 May 2004 & 21 June 2004, 8 October 2004

JUDGE:

Douglas J

ORDER:

1.    THAT, SUBJECT TO THE FORMAL REQUIREMENTS OF THE REGISTRAR, PROBATE OF THE WILL OF HANNAH MABEL DUNNING (DECEASED) OF 4 DECEMBER 2001 BE GRANTED TO PETER LESLIE CHALLEN;

2.    THAT THE EXECUTOR’S COSTS OF AND INCIDENTAL TO THE ACTION BE PAID OUT OF THE ESTATE ON AN INDEMNITY BASIS;

3.    THAT THE FIRST DEFENDANT’S COSTS OF AND INCIDENTAL TO THE ACTION BE PAID OUT OF THE ESTATE ON AN INDEMNITY BASIS SAVE AND EXCEPT FOR THOSE COSTS OF AND INCIDENTAL TO THE ALLEGATIONS IN PARAGRAPHS 6, 7 AND 8 OF THE FIRST DEFENDANT’S AMENDED DEFENCE FILED ON 12 SEPTEMBER 2003.

CATCHWORDS:

SUCCESSION - WILLS, PROBATE AND ADMINISTRATION - THE MAKING OF A WILL - TESTAMENTARY CAPACITY - SOUNDNESS OF MIND, MEMORY AND UNDERSTANDING – GENERALLY – Evidence of dementia – Whether the testatrix’ likely dementia was sufficient to infer a lack of testamentary capacity – Confused intervals and lucid intervals

SUCCESSION - WILLS, PROBATE AND ADMINISTRATION - CONTESTED PROBATE PROCEEDINGS — COSTS — Testatrix’ likely dementia — Whether party unsuccessfully opposing probate should have costs out of estate

Astridge v Pepper [1970] 1 NSWR 542, referred to
Bailey v Bailey (1924) 34 CLR 558, applied
Banks v Goodfellow (1870) LR 5 QB 549, applied
Boreham v Prince Henry Hospital (1955) 29 ALJ 179, referred to
Conroy v Unsworth-Smith [2004] QSC 81, followed
Davies v Gregory (1873) LR 3 P & D 28, applied
Harrison v Petersen [2000] QSC 415, referred to
In re Devoy; Fitzgerald & Pender v Public Curator of Queensland [1944] St R Qd 1, applied
Parker v Felgate (1883) 8 PD 171, reffered to
Perera v Perera [1901] AC 354, referred to
Perpetual Trustee Co Ltd v Baker [1999] NSWCA 244, applied
Re Hodges; Shorter v Hodges (1988) 14 NSWLR 698, applied
Read v Carmody (NSWCA, 23 July 1998, unreported), applied
Shorten v Shorten (No 2) [2003] NSWCA 60, applied
Spiers v English [1907] P 122, applied
Timbury v Coffee (1941) 66 CLR 277, applied
Worth v Clasohm (1953) 86 CLR 439, cited

COUNSEL:

R M Treston for the plaintiff
R D Peterson for the first defendant

SOLICITORS:

Hawthorn Cuppaidge & Badgery for the plaintiff
Fox Mildwaters for the first defendant

DOUGLAS J:  

Background Facts

  1. Hannah Mabel Dunning (“Miss Dunning”), who was known as Mabel Dunning, died on 25 September 2002 aged 96.  Her last will was made on 4 December 2004 when she was 95.  She had made a number of wills in…

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AGLC
Challen v Pitt [2004] QSC 365
Case
[2004] QSC 365
Decision Date

CaseChat Overview and Summary

Challen v Pitt is a case before the court involving a dispute over the validity of a will and the distribution of an estate. The testatrix, Hannah Mabel Dunning, died on 4 December 2001, leaving a will dated the same day. Peter Leslie Challen sought to have the will admitted to probate, while the first defendant, who was a family member, opposed the probate on the basis that the testatrix lacked testamentary capacity due to her likely dementia at the time of making the will. The court had to determine whether the testatrix had the requisite soundness of mind, memory and understanding to make a valid will.

The court examined the evidence of the testatrix’s likely dementia, including her medical history and the observations of those who knew her. The legal issue was whether the testatrix’s likely dementia was sufficient to infer a lack of testamentary capacity. The court also considered the issue of whether the party unsuccessfully opposing the probate should bear the costs of the action. The court assessed the testatrix’s capacity at the time she made the will, taking into account the periods of confusion and lucidity she experienced.

The court found that the testatrix had the necessary testamentary capacity to make the will, as there was no evidence that she was unable to understand the nature and effect of making a will at the time she executed it. The court rejected the argument that the testatrix’s likely dementia was sufficient to infer a lack of testamentary capacity. The court also held that the party opposing the probate should bear the costs of the action, subject to certain exceptions. The court granted the application for probate and ordered that the executor’s costs and the first defendant’s costs, except for those relating to specific allegations, be paid out of the estate on an indemnity basis.

Orders

Orders of the court

1. THAT, SUBJECT TO THE FORMAL REQUIREMENTS OF THE REGISTRAR, PROBATE OF THE WILL OF HANNAH MABEL DUNNING (DECEASED) OF 4 DECEMBER 2001 BE GRANTED TO PETER LESLIE CHALLEN;

2. THAT THE EXECUTOR’S COSTS OF AND INCIDENTAL TO THE ACTION BE PAID OUT OF THE ESTATE ON AN INDEMNITY BASIS;

3. THAT THE FIRST DEFENDANT’S COSTS OF AND INCIDENTAL TO THE ACTION BE PAID OUT OF THE ESTATE ON AN INDEMNITY BASIS SAVE AND EXCEPT FOR THOSE COSTS OF AND INCIDENTAL TO THE ALLEGATIONS IN PARAGRAPHS 6, 7 AND 8 OF THE FIRST DEFENDANT’S AMENDED DEFENCE FILED ON 12 SEPTEMBER 2003.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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