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Haberfield v Larsson

Haberfield v Larsson

Case [2023] VSC 161 31 March 2023

Testamentary Capacity

Knowledge and Approval

Challenges to Will

Mirror Wills

Solicitors' Duty in Will Preparation

Succession Law

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IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE
COMMON LAW DIVISION

TRUSTS, EQUITY AND PROBATE LIST

No. S PRB 2018 03246

IN THE MATTER of the Will of BERNARD THEODOOR JANSEN, deceased
BETWEEN:
MARGARET JEAN HABERFIELD
ROBERT NEIL HOLLAND
JOHN JAMES TAIT	Plaintiffs
- and -
MARINA LARSSON	Defendant
– and –
No. S PRB 2019 08476
IN THE MATTER of the Will of BERNARD THEODOOR JANSEN, deceased
APPLICATION BY:
MARINA ELIZABETH LARSSON	Plaintiff

JUDGE:	Cavanough J
WHERE HELD:	Melbourne
DATE OF HEARING:	17, 18, 19 November, 1, 2 December 2020; 10 February 2021
DATE OF JUDGMENT:	31 March 2023 (Revised 3 April 2023)
CASE MAY BE CITED AS:	Haberfield & Ors v Larsson
MEDIUM NEUTRAL CITATION:	[2023] VSC 161

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WILLS AND CODICILS – Testamentary capacity – Knowledge and approval – Challenges to last and penultimate wills of the deceased – Testator with Alzheimer’s dementia to some degree – Longstanding close relationship with spouse – Pattern of mirror wills of testator and spouse – Wills prepared by solicitors – Solicitors interviewing testator and spouse together – Contention that solicitors should have done more to ensure that testator himself had capacity and knew and approved of terms of wills – Rational wills matching family history – On all the evidence, Court satisfied of testamentary capacity and of knowledge and approval – Last will of deceased to be admitted to probate.

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APPEARANCES:	Counsel	Solicitors
For the plaintiffs (Margaret Jean Haberfield & Ors) in No. S PRB 2018 03246	Mr J Rizzi	Lewis Holdway Lawyers
For Marina Elizabeth Larsson, being the defendant in No. S PRB 2018 03246 and the plaintiff in No. S PRB 2019 08476	Ms E Konstantinou	McKean Park

HIS HONOUR:

Introduction and overview: three competing wills

This is the trial, together, of two related proceedings in the Trust, Equity and Probate List of this Court. Each proceeding concerns the estate of Mr Bernard Theodoor Jansen, deceased. The value of the deceased’s estate is approximately $2,500,000. It consists of a share portfolio worth about $1,300,000 and cash and other assets of about $1,200,000.

Mr Jansen was born on 25 August 1938. He died on 16 November 2017, aged 79. Mr Jansen’s last will was made on 8 March 2013, when he was 74 years of age. His penultimate will was made ten months earlier, on 9 May 2012, when he was 73 years of age. Those two wills are challenged in these proceedings. Mr Jansen’s previous will was made on 3 October 2006, when he was 68 years of age.

Mr Jansen made six wills after he moved from Melbourne to the south-western part of Victoria in or about 1996. Each was prepared by solicitors – Taits Legal or a predecessor of that firm – in Warrnambool. At least five of those six wills mirrored wills made at the same time by Bernard’s wife, Margaret Jansen. Bernard and Margaret had married in 1962. They were a devoted couple for 53 years until Margaret’s death in 2015.

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 Haberfield v Larsson

Details

AGLC: Haberfield v Larsson [2023] VSC 161
Case: [2023] VSC 161
Decision Date: 31 March 2023 (Revised 3 April 2023)

CaseChat Overview and Summary

Haberfield v Larsson was a case before the court involving challenges to the last and penultimate wills of the deceased, who suffered from Alzheimer’s dementia to some degree. The deceased had a longstanding close relationship with his spouse, and the wills in question were mirror documents, prepared by solicitors. The contention was that the solicitors should have done more to ensure that the deceased had testamentary capacity and had knowledge of and approved the terms of the wills. The court was tasked with determining whether the deceased had the necessary capacity and knowledge and approval to execute the wills, and whether they should be admitted to probate.

The legal issues that the court needed to decide included whether the deceased had testamentary capacity at the time of executing the wills, and whether he had knowledge and approval of the contents. The court examined the nature of the deceased’s dementia, the relationship with his spouse, and the pattern of the wills. It also considered the role of the solicitors in preparing the wills and the steps they took to ensure the deceased’s understanding. The court had to weigh the evidence presented and decide whether the deceased had the requisite mental capacity and whether the wills were executed with knowledge and approval.

The court found that the deceased had testamentary capacity and had knowledge and approval of the terms of the wills. It accepted that the deceased’s dementia did not necessarily preclude him from having the capacity to make a will, and that the longstanding relationship with his spouse and the mirror nature of the wills supported the conclusion that the deceased had the necessary knowledge and approval. The court was satisfied that the solicitors had taken reasonable steps to ensure the deceased understood the wills, and that the wills were rational and matched the family history. Consequently, the court ruled that the last will of the deceased was to be admitted to probate.

Orders