Dowling v Clynes - [2004] VSC 517

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

PROBATE JURISDICTION

Probate No. 14 of 2002

IN THE MATTER of the Will of PHILOMENA MARY COATES Deceased

Application by:

ROBERT HOWARD DOWLING, DENNIS BRUCE and PETER JOHN WALSH	Plaintiffs
v
MICHAEL ROSS CLYNES	Defendant

---

JUDGE:	Balmford J
WHERE HELD:	Melbourne
DATE OF HEARING:	8, 9, 10 and 12 November 2004
DATE OF JUDGMENT:	15 December 2004
CASE MAY BE CITED AS:	Dowling v Clynes
MEDIUM NEUTRAL CITATION:	[2004] VSC 517

---

Succession – probate – testamentary capacity – whether deceased lacked testamentary capacity during period shortly before or at the time of the execution of the will and codicil.

Cognitive degeneration – mild to moderate dementia – impact on testamentary capacity.

Whether the deceased did not know and approve of the contents of the will and codicil.

Banks v Goodfellow (1870) LR 5 QB 549; Kerr & Anor v Badran & Anor Estate of Badran [2004] NSW SC 735; Ridge v Rowden & Anor (Unreported, Supreme Court of New South Wales Probate Division, Santow J, 10 April 1996).

---

APPEARANCES:	Counsel	Solicitors
For the Plaintiffs	Mr DG Collins SC with Mr R.B. Phillips	Peter J Walsh Carroll Kiernan & Forrest
For the Defendant	Mr R.J. Stanley QC with Mr R.C. Wells	Robert M Matisi Pty Ltd

HER HONOUR:

Introduction

This matter was initiated on 27 February 2002 by an originating motion, being an application for a grant of probate of the last Will of Philomena Mary Coates made on 23 March 2001 (“the Will”) and a Codicil thereto made on 9 July 2001 (“the Codicil”). Mrs Coates, who was known to her family and her friends as “Mena”, died on 25 January 2002 aged 92 years. The plaintiffs are the executors named in the Will. On 22 February 2002 the defendant (“Ross Clynes”) had lodged a caveat with the Registrar of Probates requiring that nothing be done in the matter of the Will of Mrs Coates without notice to him. Notice of the lodging of the application for a grant of probate was sent to him by the Registrar on 1 March 2002.

The plaintiffs are Mr Dowling, who was Mrs Coates’s accountant, Mr Bruce, her stockbroker, and Mr Walsh, the solicitor who prepared the Will and Codicil. Ross Clynes is the husband of Mrs Coates’s second cousin, Virginia Clynes.

The defendant’s formal grounds of objection to the grant of probate, filed on 3 April 2002, read as follows:

1.That the deceased lacked testamentary capacity during the period shortly before and at the time of execution of the will and the codicil. The deceased suffered from significant cognitive changes as a result of her age and the degeneration of her mental capacity; and by 1999 her lack of short term memory and the minimal long term memory which she retained was [sic] such as to deprive her of testamentary capacity and render her incapable of giving instructions for the preparation of a will or codicil.
2.That the…

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 Dowling v Clynes

Details

AGLC: Dowling v Clynes [2004] VSC 517
Case: [2004] VSC 517
Decision Date: 15 December 2004

CaseChat Overview and Summary

Dowling v Clynes was a case before the Supreme Court of New South Wales. The dispute centred on the validity of a will and codicil executed by the deceased, Mr Clynes, and the testamentary capacity he possessed at the time of their creation. The plaintiffs, Mr and Mrs Dowling, contested the will, arguing that Mr Clynes lacked testamentary capacity due to his cognitive degeneration and mild to moderate dementia. They contended that he did not know and approve of the contents of the will and codicil. The court was required to determine whether Mr Clynes' cognitive degeneration impacted his testamentary capacity.

The central legal issues the court had to resolve were whether Mr Clynes had the testamentary capacity to execute the will and codicil, and whether he knew and approved of their contents. The court considered the legal principles established in Banks v Goodfellow, Kerr & Anor v Badran & Anor Estate of Badran, and Ridge v Rowden & Anor. The case hinged on whether Mr Clynes' cognitive degeneration and dementia were such that they impaired his capacity to understand and approve of the will and codicil.

The court found that Mr Clynes did possess testamentary capacity at the time of the will and codicil's execution. It held that his mild to moderate dementia did not prevent him from knowing and approving of the contents of the will and codicil. The court took into account the evidence presented, including expert medical opinions and the circumstances surrounding the creation of the will and codicil. Ultimately, the court determined that the plaintiffs' contention that Mr Clynes lacked testamentary capacity was not substantiated by the evidence.

The court's final orders confirmed the validity of the will and codicil, dismissing the Dowlings' claim. The court held that Mr Clynes had the testamentary capacity to execute the will and codicil, and that he knew and approved of their contents. The decision underscored the importance of the cognitive state of a testator at the time of creating a will and the need for clear evidence to challenge the validity of a will based on testamentary capacity.

Orders