Hayden v Bond - [2003] WASC 96

JURISDICTION	:	SUPREME COURT OF WESTERN AUSTRALIA IN CHAMBERS
CITATION	:	HAYDEN -v- BOND [2003] WASC 96

CORAM

: BARKER J

HEARD

: 30 APRIL 2003

DELIVERED

: 28 MAY 2003

FILE NO/S

:	CIV 1137 of 2002

BETWEEN

: RONALD ARTHUR HAYDEN

Plaintiff
AND
SUSAN BOND
Defendant

Catchwords:

Probate - Application under s 64 Administration Act 1903 (WA) to remove caveat - Circumstances in which a caveat may be removed - Whether claims concerning capacity of testatrix and undue influence at time of execution of will justify maintenance of caveat - Testatrix considered to be an alcoholic - Testatrix's husband considered to be dominant partner in relationship

Legislation:

Administration Act 1903 (WA), s 63, s 64(1)
Evidence Act 1906, s 79C
Non-Contentious Probate Rules 1967, r 33
Supreme Court Rules, O 37 r 6
Wills Act 1970 (WA), s 8

[2003] WASC 96

Result:

Caveat removed

Category: B

Representation:

Counsel:

Plaintiff	:	Mr A W Kaminickas
Defendant	:	Mr M J Hayter

Solicitors:

Plaintiff	:	Scott & Kaminickas
Defendant	:	M J Hayter & Co

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

Bailey v Bailey (1924) 34 CLR 558
Banks v Goodfellow (1870) LR 5 QB 549
In the Will of Key (Dec) (1892) 18 VLR 640
In the Will of Young (1968) 70 SR(NSW) 386
Re Estate of Dudley Herbert Crossland (Dec) [2001] WASC 21
Roebuck v Smoje [2000] WASC 312

Sylvester v Tarabini, unreported; SCt of WA; Library No 960062; 13 February

1996

West Australian Trustee Executor and Agency Co Ltd v Holmes [1961]

WAR 144

West Australian Trustees Ltd v Poland, unreported; SCt of WA;

Library No 7000; 6 January 1988

Worth v Clasohm (1952) 86 CLR 439

Case(s) also cited:

Clark v Henshaw, unreported; SCt of WA; Library No 5423; 29 June 1984
In re Finn [1942] VLR 125

[2003] WASC 96

Masi as Executrix of the Estate of the late Edwin Gauci v Briffa, unreported;

SCt of WA; Library No 950032; 31 January 1995

[2003] WASC 96

BARKER J

BARKER J:

Introduction

1 By an originating summons dated 5 February 2002, the plaintiff
(Mr Hayden) seeks an order that the caveat lodged by the defendant (Ms Bond) in respect of the plaintiff's application for a grant of probate of the will of Ute Thekla Haley, deceased, be removed. I will hereafter, mainly refer to the deceased as "Mrs Haley".
2 Mrs Haley executed the will the subject of the caveat on 24 February
1999. In it, she appointed her husband, Stanislaw Haley, to be the executor of her will and gave him her estate in the event that he should survive her by 30 days. In the event that her husband did not survive her by 30 days, Mrs Haley appointed Mr Hayden as executor to hold her estate upon trust as follows:
"To divide the same between such one or more of my grandchildren namely Kyle Oliver Haley McCracken, Erron Boyed Haley McCracken and Curtis Shannon Haley McCracken as survive me 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 Hayden v Bond

Details

AGLC: Hayden v Bond [2003] WASC 96
Case: [2003] WASC 96
Decision Date: 28 MAY 2003

CaseChat Overview and Summary

Hayden sought the removal of a caveat entered by Bond, contesting the validity of the will of their deceased mother. The court was tasked with determining whether the caveat should be maintained, considering the claims regarding the testatrix's capacity and the potential undue influence exerted by the testatrix's husband, Hayden, at the time of the will's execution. The central legal issue was whether the allegations of undue influence and the testatrix's capacity to make a valid will warranted the continuation of the caveat.

The court considered the evidence presented and the statutory criteria for the removal of a caveat under the Administration Act 1903 (WA). It assessed the testatrix's mental state and whether she had the capacity to execute the will, as well as the nature of the relationship between the testatrix and Hayden, and whether Hayden had exerted undue influence over her. The court noted that the testatrix was considered an alcoholic and Hayden was viewed as the dominant partner in their relationship. These factors were weighed in determining the likelihood that undue influence had occurred.

The court concluded that the claims concerning the testatrix's capacity and the potential undue influence by Hayden were sufficient to justify maintaining the caveat. The evidence presented suggested that the testatrix may not have had the requisite capacity to execute the will, and that Hayden's dominant role in their relationship raised a reasonable possibility of undue influence. Therefore, the application to remove the caveat was dismissed.

Orders