Diedler v Borowiec [No 2]

Case [2023] WASC 396

JURISDICTION     :   SUPREME COURT OF WESTERN AUSTRALIA

IN CIVIL

CITATION:   DIEDLER -v- BOROWIEC [No 2] [2023] WASC 396

CORAM:   WHITBY J

HEARD:   18-21 JULY, 9-10 AUGUST & 21 SEPTEMBER 2023

DELIVERED          :   18 OCTOBER 2023

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:

Wills and probate - Proof of will in solemn form - Delusions affecting testamentary capacity

Legislation:

Administration Act 1903 (WA)
Wills Act 1970 (WA)

Result:

Plaintiffs' claim dismissed
First defendant's counterclaim dismissed

Category:    B

Representation:

Counsel:

Plaintiffs : S K Shepherd
First Defendant : J L W Henderson
Second Defendant : W C McDonald

Solicitors:

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

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

Bailey v Bailey [1924] HCA 21; (1924) 34 CLR 558

Banks v Goodfellow (1870) LR 5 QB 549

Bull v Fulton (1942) 66 CLR 295

Carr v Homersham [2018] NSWCA 65

Estate of George Aeneas McDonald; Howard v The Sydney Children's Hospital (Randwick & Westmead) [2015] NSWSC 1610

Re Estate of Griffith; Easter v Griffith (1995) 217 ALR 284

Saunders v The Public Trustee [2015] WASCA 203

Tobin v Ezekiel (2012) 83 NSWLR 757

West Australian Trustee Executor and Agency Co Ltd v Holmes [1961] WAR 144

Williams v Schwarzback [No 2] [2016] WASC 43

Zorbas v Sidiropoulous (No 2) [2009] NSWCA 197

WHITBY J:

  1. On 23 September 1920, Jan Grzeczny (the deceased) was born in Poland.  In 1949, the deceased migrated to Australia.  In 1951, the deceased married his wife, Maria.  Maria already had a son, Richard, the second defendant.  Richard was born in 1943.  In 1952, the deceased and Maria had a daughter, Teresa, the first defendant.  In 1952, the deceased adopted the second defendant as his son.

  2. The deceased made several wills throughout his lifetime.  He made wills in 1981, 2014, 2017 and 2018.  This case concerns the validity of the will made by the deceased on 17 September 2018 (2018 will).

  3. Joachim and Maria‑Luise Diedler, the first and second plaintiffs respectively, are the residuary beneficiaries of the 2018 will and are seeking a declaration that the 2018 will is valid and effective and is the deceased's last will.

  4. The first and second defendants say that the deceased did not have testamentary capacity to make the 2018 will.  They say that the deceased was suffering from a disorder of his mind which poisoned his affections towards them and this influenced his testamentary dispositions under the 2018 will.

  5. In response, the plaintiffs say that the court can be satisfied, on the balance of probabilities, that the deceased had testamentary capacity at the time that he executed the 2018 will.

  6. As is often the case when a dispute about a will culminates in proceedings in the Supreme Court, there is a complicated family history that underpins the dispute.  Each party has their own version of history and…

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Diedler v Borowiec [No 2] [2023] WASC 396
Case
[2023] WASC 396
Decision Date

CaseChat Overview and Summary

In the matter of Diedler v Borowiec [No 2], the court was asked to determine the validity of a will in solemn form, specifically focusing on whether the deceased had testamentary capacity when he executed the will. The dispute arose between the plaintiffs, who contested the will, and the first defendant, who sought to have the will admitted to probate. The case was heard in the Supreme Court of Western Australia, which was tasked with deciding whether the summary judgment application brought by the first defendant should be dismissed, and if the plaintiffs should be allowed to present their case in full.

The legal issues before the court included whether the plaintiffs could adduce expert evidence on the deceased's mental state at the time of the will's creation and whether the plaintiffs should be permitted to call Ms Williams, the solicitor from the Public Trustee, to give evidence. Additionally, the court had to consider the appropriate costs associated with the summary judgment application, specifically whether the first defendant should bear the costs of the unsuccessful application. The court's reasoning centred on the need for a comprehensive examination of the medical and expert evidence to ensure a fair and just resolution of the dispute.

Strk J dismissed the summary judgment application, finding that although the plaintiffs' case might be difficult, it was not impossible or doomed to fail. The judge emphasised the importance of allowing the plaintiffs to present their case fully, including expert evidence and cross-examination, to ensure that all relevant facts were considered. The court also noted that the first defendant's application had been unsuccessful, had delayed the proceedings, and had potentially increased the costs unnecessarily. Consequently, the court reserved the decision on costs to the trial judge, recognising the discretionary nature of such decisions and the need to achieve a fair outcome.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

In opposition to the summary judgment application, the plaintiffs submitted that they should not be deprived of the opportunity to put the material they had obtained on subpoena to experts[141] and to have Ms Williams, the solicitor at the Public Trustee who took the instructions from the deceased in relation to the 2018 will, to give evidence at trial.[142][141] Plaintiffs' submissions in opposition to summary judgment application dated 8 March 2021 (Plaintiffs' summary judgment submissions) [88].[142] Plaintiffs' summary judgment submissions [89]. On 11 November 2021, Strk J made orders dismissing the summary judgment application, reserving the costs of the application to the trial judge. In doing so, her Honour said:[143]It is sufficient to say that I am of the view that although the plaintiffs' task of demonstrating the deceased's testamentary capacity at the time of the 2018 will be very difficult, I cannot say that the task is clearly impossible or doomed to fail. Notwithstanding what might now be seen as significant obstacles to the plaintiffs' case, I find that this is not a case where only one conclusion can be said to be reasonable, and therefore, I find that [the first defendant] has not discharged her onus.…However, judgment in favour of [the first defendant] at this time would be grounded on incomplete and untested evidence. There remains a disputed issue of fact as to whether the deceased had testamentary capacity when he made the 2018 will.Given the medical science involved in this case, the court should be fully informed by appropriate expert evidence and cross-examination. The opportunity for full argument should be given to all parties' legal representatives. The interests of justice require the same.[The plaintiffs] should be afforded the opportunity to brief and adduce expert evidence at trial. Further, [the plaintiffs] should not be deprived of the opportunity to have Ms Williams (the Public Trustee solicitor) give evidence at trial. …[143] Diedler v Borowiec [2021] WASC 394 [125] - [135] (Summary Judgment Reasons). The plaintiffs submit that the first defendant is not entitled to the costs of the summary judgment application as it was unsuccessful, unreasonably delayed the resolution of the proceedings, unnecessarily increased the costs of the parties and was bound to fail.[144][144] Plaintiffs' reply submissions [6]. The first defendant submits that the costs of the summary judgment application should be in the cause because it was an appropriate interlocutory step in the proceedings which may have succeeded in bringing the proceedings to an early conclusion.[145][145] First Defendant's submission [56]. The approach to determining costs on a summary judgment application, as with determining all costs orders, is inherently discretionary and each case must be considered on its own merits. The fairest outcome is what the court is aiming to achieve in exercising its discretion.[146][146] Ridgepoint Corp Pty Ltd v McCallum Donovan Sweeney (A Firm) [2011] WASC 167 [6], [10].

Ratio Decidendi

Legal Principle Established

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