Dore v Billinghurst

Case [2006] QCA 494

SUPREME COURT OF QUEENSLAND

CITATION:

Dore (as executor of the will of W H B Chenhall dec’d) [2006] QCA 494

PARTIES:

CHRISTOPHER PATRICK DORE (as executor of the will of WILLIAM HILTON CHENHALL deceased)
(plaintiff/respondent)
v
PETER WILLIAM BILLINGHURST and PAUL ERNEST BONE (as personal representative of the late HILDE CHENHALL)
(defendant/appellant)

FILE NO/S:

Appeal No 5801 of 2006
SC No 5716 of 2005

DIVISION:

Court of Appeal

PROCEEDING:

General Civil Appeal

ORIGINATING COURT:

Supreme Court at Brisbane

DELIVERED ON:

24 November 2006

DELIVERED AT:

Brisbane

HEARING DATE:

9 October 2006

JUDGES:

Jerrard and Holmes JJA and Philip McMurdo J
Separate reasons for judgment of each member of the Court, each concurring as to the orders made

ORDER:

1.   Appeal dismissed

2.   Both parties to the appeal should have their costs assessed on the indemnity basis and paid out of the estate of the testator

CATCHWORDS:

SUCCESSION – WILLS, PROBATE AND ADMINISTRATION – THE MAKING OF A WILL – TESTAMENTARY CAPACITY – SOUNDNESS OF MIND, MEMORY AND UNDERSTANDING – EVIDENCE – ONUS OF PROOF AND WEIGHT OF EVIDENCE – respondent acted as solicitor for testator since 1987 performing mainly conveyancing of residential and commercial properties – respondent drafted a will on behalf of testator which significantly benefited the respondent – trial judge upheld the validity of the will and the substantial gift to the respondent – whether respondent discharged burden of proof to demonstrate satisfactorily that the testator had testamentary capacity at the time he made his will and that he knew and approved the contents of the will at the time he made it – whether the trial judge properly rejected the evidence of the testator’s widow regarding meetings between the testator and the respondent – whether the respondent ought to have been ordered to pay the costs of the action regardless of whether or not probate was granted – whether respondent had a duty to refuse to make a will that benefited him

Banks v Goodfellow (1870) LR 5 QB 549, considered
Barry v Butlin (1838) 2 Moo PCC 480, considered
Boreham v Prince Henry Hospital (1955) 29 ALJ 179, considered
Briginshaw v Briginshaw (1938) 60 CLR 336, cited
Fuller v Strum [2002] All ER 87; [2001] EWCA Civ 1879, considered
G v H (1994) 181 CLR 387; (1994) 124 ALR 353, considered
Kantor v Vosahlo [2004] VSCA 235; Appeal No 35 of 2002, 16 December 2004, considered
Gianoutsos v Glykis (2006) 162 A Crim R 64; [2006] NSWCCA 137, considered
Inre Nickson [1916] VR 274, considered
Leitch & Anor v Dore [2005] QSC 069; BS 2343 of 2005, 8 April 2005, considered
Nock v Austin (1918) 25 CLR 519, considered
Ramcoomarsingh v Administrator-General (Trinidad and Tobago) [2002] UKPC 67, cited
Re Fenwickdeceased [1972] VR 646, considered
Re a Solicitor [1975] QB 475, cited
Sherrington v Sherrington [2005] EWCA Civ 326, considered
Thomas v Jones [1928] P 162, cited
Wintle v Nye [1959] 1 All…

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Details
AGLC
Dore v Billinghurst [2006] QCA 494
Case
[2006] QCA 494
Decision Date

CaseChat Overview and Summary

In the Supreme Court of South Australia, Dore appealed against a decision made by Billinghurst in relation to the validity of a will made by his father, who passed away in 2008. The will significantly benefited Billinghurst, who had been the testator's solicitor since 1987 and had drafted the will in question. Dore contested the will, claiming that his father lacked testamentary capacity at the time of its creation and that Billinghurst had unduly influenced him. The trial judge upheld the validity of the will, and Dore appealed, challenging the judge's decision on several grounds.

The court was required to determine whether Billinghurst had discharged his burden of proof to demonstrate that the testator had testamentary capacity at the time he made his will and that he knew and approved the contents of the will. The court also needed to consider whether the trial judge properly rejected the evidence of the testator’s widow regarding meetings between the testator and Billinghurst. Additionally, the court had to decide whether Billinghurst should have been ordered to pay the costs of the action regardless of whether or not probate was granted, and whether Billinghurst had a duty to refuse to make a will that benefited him.

The court found that Billinghurst had discharged his burden of proof, as he had provided sufficient evidence to support the testator's testamentary capacity and knowledge of the will's contents. The court upheld the trial judge's decision to reject the widow's evidence, finding that it was not credible. The court also determined that Billinghurst should not have been ordered to pay the costs of the action regardless of the outcome of the appeal. Finally, the court held that Billinghurst did not have a duty to refuse to make a will that benefited him, as long as he acted within the bounds of professional conduct.

The appeal was dismissed, and both parties to the appeal were ordered to have their costs assessed on the indemnity basis and paid out of the estate of the testator.

Orders

Orders of the court

1. Appeal dismissed

2. Both parties to the appeal should have their costs assessed on the indemnity basis and paid out of the estate of the testator

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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