GENT -v- ROBBINS [2008] WASC 179

Jurisdiction:	SUPREME COURT OF WESTERN AUSTRALIA	Citation No:	[2008] WASC 179
Case No:	CIV:1925/2007	Heard:	15 AUGUST 2008
Coram:	HASLUCK J	Delivered:	22/08/08
No of pages:	16	Judgment Part:	1 of 1
Result:	Order that grant of probate in solemn form be issued on will dated 19 December 2003 Declaration that will dated 23 July 2004 is invalid and of no force and effect
Category:	B
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Parties:	CAMERON ROBERT GENT EDWIN ROBBINS JULIE DOLS
Catchwords:	Wills, probate and administration Proceedings by executors Application for grant of probate and proof of will in solemn form Assessment of testamentary capacity upon execution of will Whether earlier will was later revoked by subsequent will Turns on own facts
Legislation:	Wills Act 1970 (WA), s 15
Case References:	Bailey v Bailey (1924) 34 CLR 558 Banks v Goodfellow [1870] LR 5 QB 549 Roebuck v Smoje [2000] WASC 312 The Public Trustee in and for Western Australia v Churches of Christ Homes and Community Services Inc [2005] WASC 289 West Australian Trustee Executor & Agency Company Ltd v Holmes [1961] WAR 144 Wheatley v Edgar [2003] WASC 118

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

IN CIVIL

CITATION : GENT -v- ROBBINS [2008] WASC 179 CORAM : HASLUCK J HEARD : 15 AUGUST 2008 DELIVERED : 22 AUGUST 2008 FILE NO/S : CIV 1925 of 2007 MATTER : Estate of GEORGE BOAG BOND late of Mandurah Retirement Village in the State of Western Australia, Retired BETWEEN : CAMERON ROBERT GENT

Plaintiff

AND

EDWIN ROBBINS

JULIE DOLS

Defendants

Catchwords:

Wills, probate and administration - Proceedings by executors - Application for grant of probate and proof of will in solemn form - Assessment of testamentary capacity upon execution of will - Whether earlier will was later revoked by subsequent will - Turns on own facts

Legislation:

Wills Act 1970 (WA), s 15

(Page 2)

Result:

Order that grant of probate in solemn form be issued on will dated 19 December 2003

Declaration that will dated 23 July 2004 is invalid and of no force and effect

Category: B

Representation:

Counsel:

Plaintiff : Mr S J Penrose

Defendants : Mr P S Murray

Solicitors:

Plaintiff : Tottle Partners

Defendants : Marks & Sands

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

Bailey v Bailey (1924) 34 CLR 558
Banks v Goodfellow [1870] LR 5 QB 549
Roebuck v Smoje [2000] WASC 312
The Public Trustee in and for Western Australia v Churches of Christ Homes and Community Services Inc [2005] WASC 289
West Australian Trustee Executor & Agency Company Ltd v Holmes [1961] WAR 144
Wheatley v Edgar [2003] WASC 118

(Page 3)

HASLUCK J

Introduction

1 The plaintiff, Cameron Robert Gent, is the sole executor of a will dated 19 December 2003 executed by George Boag Bond who died on 2 August 2007 leaving property in the State of Western Australia. The plaintiff seeks an order that the court pronounce the force and validity of the 2003 will. An issue…

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 Gent v Robbins

Details

AGLC: Gent v Robbins [2008] WASC 179
Case: [2008] WASC 179
Decision Date: 22 AUGUST 2008

CaseChat Overview and Summary

The case of Gent v Robbins involves the deceased's estate and the validity of two conflicting wills. The executors of the estate sought a grant of probate and proof of the will in solemn form. The dispute centred on the validity of a will dated 23 July 2004, and whether it had been validly executed and revoked an earlier will dated 19 December 2003. The court was required to determine whether the deceased possessed the necessary testamentary capacity when executing the later will, and if the later will effectively revoked the earlier will.

The court examined the evidence regarding the deceased's mental state at the time of executing the later will. It was essential to establish that the deceased had a sound and disposing mind and understood the nature and effect of the act of making a will. The court also needed to assess whether the later will contained clear and unequivocal terms that demonstrated the deceased's intention to revoke the earlier will. The court considered medical evidence, expert opinions, and the circumstances surrounding the execution of both wills.

After reviewing the evidence, the court found that the deceased did not possess the necessary testamentary capacity when executing the later will. The court held that the deceased lacked the understanding of the nature and effect of making a will due to a significant decline in cognitive function. Consequently, the court concluded that the later will was invalid and of no force and effect. The court further declared that the earlier will remained valid and should be granted probate in solemn form.

The court issued an order that a grant of probate in solemn form be issued on the will dated 19 December 2003. Additionally, the court declared that the will dated 23 July 2004 was invalid and of no force and effect. This decision resolved the dispute over the validity of the two wills and ensured that the estate was administered according to the valid will.

Orders

Orders of the court

Order that grant of probate in solemn form be issued on will dated 19 December 2003

Declaration that will dated 23 July 2004 is invalid and of no force and effect

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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