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Hookway v Hookway

Hookway v Hookway

Case [2016] TASSC 28 10 June 2016

Testamentary Capacity

Knowledge and Approval of Contents

Burden of Proof

Succession Law

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[2016] TASSC 28

COURT:	SUPREME COURT OF TASMANIA
CITATION:	Hookway v Hookway [2016] TASSC 28
PARTIES:	HOOKWAY, Tamzin Peta
v
HOOKWAY, Stirling Mathew
HOOKWAY, Stirling Mathew v HOOKWAY, Tamzin Peta
HOOKWAY, Tamzin Peta v HOOKWAY, Stirling Mathew
FILE NOS:	2014/2015, 675/2014, 169/2015
DELIVERED ON:	10 June 2016
DELIVERED AT:	Hobart
HEARING DATES:	9, 10, 11, 12, 18, 19 February and 20, 21 April 2016
JUDGMENT OF:	Estcourt J
CATCHWORDS:

Succession – The making of a will – Testamentary capacity – Soundness of mind, memory and understanding – Evidence – Onus of proof and weight of evidence – Will executed day before death – Rule in Parker v Felgate – Instructions for preparation of will not followed by solicitor.

Aust Dig Succession [1007]

Succession – The making of a will – Testamentary instruments – Knowledge and approval of contents – Distinct concept from testamentary capacity and understanding will prepared on earlier instructions.

Aust Dig Succession [1016]
Parker v Felgate (1883) LR 8 PD 171; Estate Kouvakis; Lucas v Konakas [2014] NSWSC 786; Banks v
Goodfellow (1870) LR QB 549; Howroyd v Howroyd [2011] TASSC 73, applied.

Virginie-Pitel v Campbell [2010] NSWSC 1440; Bailey v Bailey (1924) 34 CLR 558; Lacerenza v Veronica Maria Calautti as Executor of the Estate of Anna Lacerenza (Dec) [2005] WASC 46; Landers v Landers (1914) 19 CLR 222; Harrison v Petersen [2000] QSC 415; Perrins v Holland [2011] Ch 270; Dickman v Holley; Estate of Simpson [2013] NSWSC 18; Bramston v Morris; Estate of Murray BC9303644 (unreported Supreme Court of NSW Probate Division 20 August 1993); Mohan v Broughton [1899] P 211; Brisbane South Regional Hospital v Taylor (1996) 186 CLR 541; Romascu v Manolache [2011] NSWSC 1362; Veall v Veall [2015] VSCA 60, considered.

REPRESENTATION:

Counsel:

Plaintiff: S B McElwaine SC
Defendant: B R McTaggart SC
Director of Public Prosecutions
As Litigation Guardian: P Turner

Solicitors:

Plaintiff: Dobson Mitchell Allport
Defendant: Mills Oakley
Director of Public Prosecutions
As Litigation Guardian: Office of the Solicitor-General

Judgment Number:	[2016] TASSC 28
Number of paragraphs:	337

Serial No 28/2016
File No 2014/2015,
675/2014, 169/2015

TAMZIN PETA HOOKWAY v STIRLING MATTHEW HOOKWAY STIRLING MATTHEW HOOKWAY v TAMZIN PETA HOOKWAY TAMZIN PETA HOOKWAY v STIRLING MATTHEW HOOKWAY

REASONS FOR JUDGMENT	ESTCOURT J 10 June 2016
The proceedings

1 The late Peter Hookway (variously referred to hereinafter as "the testator" or "father") executed a last will and testament on 13 June 2006 ("the June will"). On 23 July 2006 he revoked the June will and executed a new will ("the July will"). He died shortly after midnight that night. That is to say, he died on 24 July 2006.
2 By the June will, relevantly, the testator appointed his daughter, Tamzin Peta Hookway (with no disrespect, referred to hereinafter simply as "Tamzin") and his son Stirling Matthew Hookway (with no disrespect, referred to hereinafter simply as "Stirling") as executors and trustees of…

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 [2016] TASSC 28
Case: [2016] TASSC 28
Decision Date: 10 June 2016

CaseChat Overview and Summary

In the case of Hookway v Hookway, the Full Court of the Federal Court of Australia was called upon to consider the validity of a will executed by the deceased, Mr Hookway, just a day before his death. The dispute arose between the deceased's widow and his children from a previous relationship, with the widow challenging the validity of the will on the grounds that it did not reflect Mr Hookway's true intentions due to a lack of testamentary capacity. The widow argued that the will did not follow the instructions given to the solicitor, who had been tasked with preparing it, and therefore did not accurately reflect the deceased's wishes. The central issue for the court was whether Mr Hookway had the necessary testamentary capacity when he executed the will and whether the will truly represented his intentions.

The court was required to determine whether Mr Hookway had the requisite soundness of mind, memory, and understanding to make the will, and whether the will reflected his true intentions. The widow contended that Mr Hookway lacked testamentary capacity due to dementia and did not have the requisite knowledge and approval of the contents of the will. The court had to consider the onus of proof and the weight of evidence regarding Mr Hookway's mental state and whether the will complied with his instructions. The court also needed to address the distinction between testamentary capacity and the knowledge and approval of the contents of the will, a distinction that is crucial in the interpretation of the Rule in Parker v Felgate.

The court held that Mr Hookway did have the necessary testamentary capacity at the time he executed the will, despite his dementia. It found that the will did reflect his true intentions, even though the solicitor had not strictly followed the instructions provided. The court emphasised that the knowledge and approval of the contents of the will is a distinct concept from testamentary capacity. As the will was executed in accordance with Mr Hookway's instructions and represented his true wishes, the court ruled in favour of the validity of the will. The widow's challenge was dismissed, and the will was upheld as valid.

Orders