Griffin v Boardman - [2009] SASC 315

SUPREME COURT OF SOUTH AUSTRALIA
(Testamentary Causes Jurisdiction: Application)
GRIFFIN v BOARDMAN
[2009] SASC 315
Judgment of The Honourable Justice White
2 October 2009
SUCCESSION - WILLS, PROBATE AND ADMINISTRATION - THE MAKING OF A WILL - TESTAMENTARY CAPACITY - IN GENERAL
SUCCESSION - WILLS, PROBATE AND ADMINISTRATION - THE MAKING OF A WILL - TESTAMENTARY CAPACITY - SOUNDNESS OF MIND, MEMORY AND UNDERSTANDING - GENERALLY
SUCCESSION - WILLS, PROBATE AND ADMINISTRATION - THE MAKING OF A WILL - TESTAMENTARY CAPACITY - SOUNDNESS OF MIND, MEMORY AND UNDERSTANDING - TIME AT WHICH SOUND MIND NECESSARY
Application for an order authorising the making of a will for the defendant - defendant suffers Alzheimer's dementia - absent a statutory will the defendant will die intestate.
Whether the proposed testator lacks testamentary capacity - whether the proposed will reflects the likely intentions of the testator - whether proposed order reasonable.
Held: permission granted to make the application - application granted.
Wills Act 1936 (SA) s 7; Inheritance (Family Provision) Act 1972 (SA) s 7; Administration and Probate Act 1919 (SA) s 72G; Mental Capacity Act 2005 (UK), referred to.
Timbury v Coffee (1941) 66 CLR 277, applied.
Bryant v Blake [2004] SASC 369; Hoffmann v Waters (2007) 98 SASR 500; In Re P [2009] 2 All ER 1198; In re D (J) [1982] Ch 237, considered.

GRIFFIN v BOARDMAN
[2009] SASC 315
Testamentary Causes Jurisdiction

WHITE J: The plaintiff applies for an order of the Court under s 7(1) of the Wills Act 1936 (SA) authorising the making of a will of behalf of Mrs Agnes Boardman. The plaintiff is the stepdaughter of Agnes.
Under s 7 of the Wills Act, such an application may be made only with the permission of the Court. As the affidavits filed in support of the application indicated that it appeared to have some merit, I directed that the application for permission and the substantive application be heard at the same time.[1]
[1] Cf Bryant v Blake [2004] SASC 369 at [25]; Hoffmann v Waters [2007] SASC 273 at [10]; (2007) 98 SASR 500 at 503.
Before making an order under s 7(1), the Court must be satisfied of the matters specified in s 7(3) of the Wills Act:
(a)     the person lacks testamentary capacity; and
(b)the proposed will, alteration or revocation would accurately reflect the likely intentions of the person if he or she had testamentary capacity; and
(c)     it is reasonable in all the circumstances that the order should be made.
“Testamentary capacity” is defined in s 7(12) as follows:
(12)   In this section—
testamentary capacity means the capacity to make a will1.
Note—
1       The cause of incapacity to make a will may arise from mental incapacity or from physical incapacity to communicate testamentary intentions.
The capacity to make a will requires testators to have sufficient mental capacity to comprehend the nature of what they are doing, and its effects, and to be able to realize the extent and…

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 Griffin v Boardman

Details

AGLC: Griffin v Boardman [2009] SASC 315
Case: [2009] SASC 315
Decision Date: 2 October 2009

CaseChat Overview and Summary

The case of Griffin v Boardman involved a dispute over the testamentary capacity of Agnes Boardman, who was suffering from Alzheimer's dementia. The plaintiff, Griffin, sought an order to authorise the making of a will on behalf of Agnes, who would otherwise die intestate. The matter was heard in the Supreme Court of South Australia, with the presiding judge considering whether Agnes lacked testamentary capacity and if the proposed will reflected her likely intentions.

The central legal issues that the court needed to decide were whether Agnes lacked testamentary capacity, whether the proposed will accurately reflected her likely intentions, and whether it was reasonable to grant the order sought. The court had to examine the evidence provided and determine if Agnes had the requisite soundness of mind, memory, and understanding to make a valid will. The court also needed to consider if the proposed will was a reasonable reflection of Agnes's wishes, given her condition.

In reaching its decision, the court found that Agnes did indeed lack testamentary capacity and it was unlikely that she would recover it. The court was satisfied that the statutory will proposed by the plaintiff accurately reflected Agnes's likely intentions if she had testamentary capacity. Additionally, the court determined that it was reasonable to grant the order sought under the circumstances. The court authorised the making of a will on behalf of Agnes in the terms of the document outlined in the plaintiff's affidavit. The will was to be signed by the Registrar of Probates and sealed with the Court's seal. The will would be retained by the Registrar and could only be withdrawn with a Court order under s 7(11) of the Wills Act 1936.

The court granted permission to make the application and authorised the making of a will on behalf of Agnes. The will was to be signed by the Registrar of Probates and sealed with the Court's seal. It was to be retained by the Registrar and could only be withdrawn with a Court order. The court also directed that the parties be heard on the matter of costs.

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

It was common ground between the parties that there were no persons who could, upon the death of Agnes, make claims for provision under s 7 of the Inheritance (Family Provision) Act 1972 (SA). Accordingly, the Court does not need to be concerned about the effect of the statutory will on such persons.Conclusion For the reasons give above, I am satisfied that Agnes does lack testamentary capacity and is unlikely to recover it. I am satisfied that the statutory will proposed by the plaintiff does accurately reflect the likely intentions of Agnes if she did have testamentary capacity and I am satisfied that it is reasonable, in all the circumstances, for the order sought to be made. The orders of the Court are:1. Permission to make the application is granted to the plaintiff.2.The Court authorises the making of a will on behalf of the defendant in the terms of the document which is Exhibit BSG24 to the affidavit of the plaintiff affirmed on 12 March 2009.3.The will is to be signed by the Registrar of Probates and to be sealed with the seal of the Court.4.The will is to be retained by the Registrar of Probates and is not to be withdrawn from deposit from the Registrar by or on behalf of the defendant unless by an order of the Court made under s 7(11) of the Wills Act 1936. I will hear the parties as to costs.

Ratio Decidendi

Legal Principle Established

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