Diedler v Borowiec

Case [2021] WASC 394

JURISDICTION     :   SUPREME COURT OF WESTERN AUSTRALIA

IN CIVIL

CITATION:   DIEDLER -v- BOROWIEC [2021] WASC 394

CORAM:   ACTING MASTER STRK

HEARD:   1 APRIL 2021

DELIVERED          :   11 NOVEMBER 2021

FILE NO/S:   CIV 3129 of 2019

BETWEEN:   JOACHIM GOTTFRIED DIEDLER

MARIA-LUISE DIEDLER

Plaintiffs

AND

TERESA IRENA BOROWIEC

First Defendant

RICHARD EDWARD GOODE

Second Defendant


Catchwords:

Practice and procedure - Application for summary judgment made by the first defendant - Leave required to bring the application out of time - Summary judgment sought in a probate action - Plaintiffs seek to prove a will in solemn form - First defendant has filed a defence and counterclaim in the probate proceeding and seeks to prove an earlier will in solemn form - Testamentary capacity - Whether the plaintiffs' claim is doomed to fail - The probate jurisdiction of the court

Legislation:

Administration Act 1903 (WA)
Rules of the Supreme Court 1971 (WA)
Wills Act 1970 (WA)

Result:

Application dismissed

Category:    B

Representation:

Counsel:

Plaintiffs : PJ Hannan
First Defendant : J Henderson
Second Defendant : W McDonald

Solicitors:

Plaintiffs : Forbes Kirby
First Defendant : Butlers Lawyers & Notaries
Second Defendant : Focused Legal

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

Anderson v Effexseven (1998) 10 ANZ Ins Cas 61-434

Bank of Western Australia v Stein [2005] WASC 43

Boyce v Bunce [2015] NSWSC 192

Deputy Commissioner of Taxation v Heaton (1997) 35 ATR 450

Dey v Victorian Railway Commissioners (1949) CLR 62

Estate Stojic, Deceased [2017] NSWSC 168

Forsyth NL v Northern Gold NL (Unreported, WA Supreme Court, Full Court, 20 January 1994, SCL940012)

Gallo v Dawson (1990) 93 ALR 479

Gerovich v Gerovich [2018] WASC 153

Gooley v Gooley [2021] NSWSC 56

Guthrie v Spence (2009) 78 NSWLR 225

Jacka Nominees Pty Ltd (in liq) v Edwards Karwacki Smith & Co Pty Ltd (Unreported, WASC, Library No 920512, 12 October 1992)

Johnson v Hallam [2015] WASC 149

Laine v Laine [2016] WASC 401

Lashansky v Legal Practice Board of Western Australia [No 3] [2013] WASCA 260

Mycogen Plant Science Inc v Monsanto Australia Ltd (2001) 51 IPR 364 [2001] FCA 143

Public Trustee v Royal Perth Hospital Medical Research Foundation Inc [2014] WASC 17

Ridgepoint Corporation Pty Ltd v McCallum Donovan Sweeney (a firm) [2011] WASC 167

Smith Estate: Smith v Smith & Ors [2005] NSWSC 1340

Smith v Town and Country Bank (Unreported, WASCA, Library No 970716, 18 December 1997

Stewart v Stewart [2019] WASC 432

Sunlea Enterprises Pty Ltd as trustee for Drummond Cove Unit Trust v Pollock (No 2) [2015] WASC 102

Webster v Lampard (1993) 177 CLR 598

Westpac Banking Corp v Anderson [2017] WASC 106

Worth v Clasohm [1952] HCA 67; (1952) 86 CLR 439

ACTING MASTER STRK:

  1. This proceeding was commenced by Mr and Ms Diedler by a writ of summons indorsed with a statement of claim on 13 December 2019.  They seek a declaration that the will made by Jan Grzeczny (the deceased) on 17 September 2018 (the 2018 will), is valid and effective…

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Details
AGLC
Diedler v Borowiec [2021] WASC 394
Case
[2021] WASC 394
Decision Date

CaseChat Overview and Summary

In the case of Diedler v Borowiec, the plaintiffs, JG Diedler and his wife, sought to challenge the validity of a will executed by their son, who had passed away in 2018. The defendant, Ms Borowiec, was contesting the will, arguing that the deceased lacked testamentary capacity at the time of its execution due to a longstanding delusional disorder. The matter was before the Supreme Court of Western Australia, where the plaintiffs sought to have the defendant's application for summary judgment dismissed.

The primary legal issue before the court was whether the plaintiffs' claim of testamentary capacity could be disposed of in a summary manner. The court had to determine if the unchallenged evidence of the deceased's longstanding delusional disorder, which was affecting his mind at the time of the will's execution, was sufficient to establish that the deceased lacked testamentary capacity. Additionally, the court had to consider whether the plaintiffs could establish testamentary capacity to the requisite standard in light of the unchallenged diagnosis.

The court found that the plaintiffs' case was dependent on the unpleaded presumption that the deceased had testamentary capacity when the 2018 will was drafted and/or executed. Given the unchallenged evidence of the deceased's longstanding delusional disorder affecting his mind at the time of the will's execution, the court held that there was no possible basis upon which the plaintiffs could establish testamentary capacity to the requisite standard. The court further found that the plaintiffs' evidence, even at its highest, could not support a finding that the deceased had a mind free from a disorder that poisoned his affections for Ms Borowiec. Consequently, the court held that the plaintiffs' case was doomed to fail, and granted the defendant's application for summary judgment.

The final orders of the court were that the plaintiffs' claim was dismissed with costs to be paid by the plaintiffs to the defendant.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

Counsel submitted that the plaintiffs should not be deprived of the opportunity to put to experts the material produced on subpoenas issued at their request.[38] It was submitted that to deprive them of that opportunity would be inconsistent with the order made by the learned Master on 19 January 2021, which provided as follows:Expert Evidence5.The plaintiffs have leave to provide the documents returned on subpoenas issued 9 October 2020 to the below parties to an expert for the purposes of obtaining a report.(a) Dr Lee Lee Tan;(b) Kooyong Medical;(c) Royal Perth Hospital; and(d) Bentley Older Adult Mental Health Clinic.[38] Affidavit of JG Diedler sworn 10 February 2021, pars 29 - 32 and 35; see also [43], [45] and [49] above. Counsel further submitted that Mr and Ms Diedler should not be deprived of the opportunity to have Ms Williams (the Public Trustee solicitor) give evidence at trial.[39] Ms Williams took instructions from the deceased for the 2018 will on the day on which the 2018 will was executed.[40] [39] Affidavit of JG Diedler sworn 10 February 2021, par 36; note also Ridgepoint [51] - [52].[40] Affidavit of JG Diedler sworn 10 February 2021 JGD-5, page 37. Counsel submitted that having regard to the evidence before the court, this was plainly not a case in which the issue of testamentary capacity may be disposed of in a summary manner. While I accept that it is a grave matter to invalidate a will,[41] the gravity of the application made on behalf of Ms Borowiec was not determinative of it.[41] Gooley v Gooley [2021] NSWSC 56 [710], cited in the plaintiffs' submissions filed on 8 March 2021, par 86. I also accept that an application for summary judgment may succeed even though it involves the determination of a complex issue. In such a case, the issue must be clearly defined and the respondent to the application must be on clear notice of the point said to be fatal.[42] In this case, the point said to be fatal was that the presumption of capacity cannot survive the unchallenged evidence that the deceased was diagnosed with a longstanding delusional disorder which was observed to be relevantly affecting his mind at the time be made the 2018 will.[43] Further, in light of the unchallenged diagnosis, there was no possible basis upon which the plaintiffs could establish to the requisite standard that the deceased had capacity when he made the 2018 will.[44][42] Mycogen Plant Science Inc v Monsanto Australia Ltd (2001) 51 IPR 364 [2001] FCA 143 [36] (Kenny J); Gerovich v Gerovich [28].[43] The first defendant's submissions filed 19 February 2021, par 6.2.[44] ts 30, 58 - 61 (1 April 2021). Ms Borowiec is motivated, as are no doubt all of the parties, to bring this proceeding to a close. The deceased died in December 2018. The estate remains unadministered. The next phase of the proceeding will likely require the expense of briefing of an expert or experts and a potentially lengthy trial by reason of the number of likely witnesses. Ms Borowiec says that the result of this proceeding is now known and the claim of Mr and Ms Diedler is doomed to fail, so it is appropriate that judgment be entered.

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

While the RSC O 16 r 1(1) does not contain a 'some other reason for trial' ground for refusal (in contrast to the RSC O 14), I proceeded on the basis that the court may take forensic and interest of justice considerations into account when determining an application made pursuant to the RSC O 16.[17][17] Ridgepoint Corporation Pty Ltd v McCallum Donovan Sweeney (a firm) [2011] WASC 167 [51] - [53] (Kenneth Martin J). It was submitted on behalf of Ms Borowiec that the plaintiffs' case is dependent on the presently unpleaded presumption that the deceased had testamentary capacity when the 2018 will was drafted and/or executed. Ms Borowiec's defence to the plaintiffs' claim is that the deceased did not have testamentary capacity when the 2018 will was drafted and/or executed, because the deceased was acting under the influence of delusions or unreasoning prejudice to such an extent that he was deprived of testamentary capacity. Counsel noted that the plaintiffs had not pleaded any material facts in support of their global denials that the deceased lacked testamentary capacity, and that Ms Borowiec did not know of any reasonable basis on which Mr and Ms Diedler denied that the deceased presented with and was diagnosed with delusional disorder from 2015. Counsel noted that Mr and Ms Diedler had not advanced any positive medical evidence that the deceased had capacity at the relevant dates. Counsel for Ms Borowiec submitted that that the presumption of capacity cannot survive the unchallenged evidence that the deceased was diagnosed with a longstanding delusional disorder which was observed to be relevantly affecting his mind at the time that he made the 2018 will. It was submitted that the plaintiffs' evidence, taken at its highest, cannot support a finding that the deceased had a mind free from a disorder that poisoned his affections for Ms Borowiec. Further, their evidence does nothing to contradict the unchallenged evidence of each of the deceased's treating practitioners that the deceased was suffering a disorder of the mind in 2018 that caused him to think that Ms Borowiec was a practitioner of witchcraft who was trying to kill him. It was also submitted that expert evidence cannot change the now known outcome of this matter as the documentary evidence secured through subpoena is determinative. It was submitted that no expert evidence could now ground a finding that on the balance of probabilities, the deceased had capacity when he made the 2018 will, and therefore the plaintiffs' case is doomed to fail.[18] Counsel for Ms Borowiec summarised the legal principles relating to testamentary capacity in the following terms, largely drawing upon the cases referred to in the decision of Curthoys J in Stewart v Stewart [2019] WASC 432 [13] - [14].[19][19] The following paragraphs are drawn from the first defendant's submissions filed 19 February 2021, pars 7.1 - 7.6, citations omitted. Counsel submitted that the starting point is that the onus of proof lies upon the proponent of the will to satisfy the court that it is the last will of a 'free and capable' testator.