Succession – Making of a will – Testamentary capacity – Soundness of mind, memory and understanding – Time at which sound mind necessary – Crucial dates – Date when instructions given – Instructions not followed by solicitor.

Parker v Felgate (1883) LR 8 PD 171, distinguished.
Aust Dig Succession [1004]

Succession – Probate and letters of administration – Alteration and revocation of grants – Circumstances – Discovery of will and invalidity of will – Invalidity of will – Discretion to refuse revocation of grant.

Supreme Court Civil Procedure Act 1932 (Tas), s 45.
Estate Kouvakis; Lucas v Konakas [2014] NSWSC 786, discussed.
Aust Dig Succession [1126]

REPRESENTATION:

Counsel:
             Appellant:  D G Collins QC, T P Mitchell
             Respondent:  S B McElwaine SC, C Groves
Solicitors:
             Appellant:  Mills Oakley Lawyers
             Respondent:  Dobson Mitchell Allport

Judgment Number: [2017] TASFC 4
Number of paragraphs: 243

Serial No 4/2017
File No 3709/2016

STIRLING MATHEW HOOKWAY v TAMZIN PETA HOOKWAY

REASONS FOR JUDGMENT FULL COURT

BLOW CJ
MARTIN AJ
MARSHALL AJ
7 April 2017

Order of the Court

Appeal dismissed.

Serial No 4/2017
File No 3709/2016

STIRLING MATHEW HOOKWAY v TAMZIN PETA HOOKWAY

REASONS FOR JUDGMENT FULL COURT

BLOW CJ
4 April 2017

In the last weeks of his life, the late Peter Hookway executed two wills, one dated 13 June 2006 and one dated 23 July 2006. He died on 24 July 2006. He was survived by his two adult children, whose first names are Stirling and Tamzin. They are the appellant and the respondent in this appeal. They were the residuary beneficiaries under each of the two wills.
The second will, but not the first, contained a gift of some valuable real estate to the testator's trustees, to be held on a discretionary trust for the testator's grandchildren, including any unborn grandchildren, and remoter issue. The dispositions under the two wills were otherwise identical. Four executors and trustees were appointed by the second will. Stirling and Tamzin were two of them. In September 2006 the four executors obtained a grant of probate of that will in common form. The other two executors subsequently retired.
During 2012 there was a falling out between Stirling and Tamzin. Until then, there had been an informal arrangement that the trust property was to be treated as if it were held on a 50:50 basis – 50% for the benefit of Stirling's children, and 50% for the benefit of Tamzin's child. She only had one child. As a result of their falling out, Stirling was no longer agreeable to that arrangement.
After obtaining some good legal advice, Tamzin brought an…

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 Hookway v Hookway

Details

AGLC: Hookway v Hookway [2017] TASFC 4
Case: [2017] TASFC 4
Decision Date: 7 April 2017

CaseChat Overview and Summary

The Full Court of the Supreme Court of Tasmania considered an appeal concerning the validity of a will. The dispute involved the testamentary capacity of the deceased, Mr. Hookway, at the time he gave instructions for his will. The primary issue was whether Mr. Hookway possessed the requisite "soundness of mind, memory and understanding" at the moment he instructed his solicitor, notwithstanding a subsequent decline in his mental state before the will was formally executed.

The court was required to determine the critical date for assessing testamentary capacity. Specifically, it had to decide whether capacity should be assessed at the time the deceased gave instructions for the will, or at the time the will was signed, particularly where there was a significant gap between these events and the instructions were not immediately acted upon by the solicitor.

The Full Court held that the crucial time for assessing testamentary capacity is when the deceased gives instructions for the will, provided those instructions are subsequently followed and embodied in the will. The court reasoned that the testator's mind must be sound at the time they form the intention to make a will and communicate that intention. While the solicitor's delay in preparing the will was noted, it did not alter the fundamental principle that capacity is assessed at the time of instruction. The court applied the established legal principles regarding testamentary capacity, emphasizing that the testator must understand the nature of the act of making a will and its effect, the extent of their property, and the claims of those who might expect to benefit.

The appeal was allowed, and the grant of probate was refused.

Orders