JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CIVIL
CITATION: HORNSBY -v- HORNSBY [No 2] [2014] WASC 434
CORAM: EM HEENAN J
HEARD: 23 - 27 & 30 JUNE, 1 - 2 JULY 2014
DELIVERED : 21 NOVEMBER 2014
FILE NO/S: CIV 3045 of 2010
BETWEEN: SHARON JUDITH HORNSBY
Plaintiff
AND
CRAIG LEONARD HORNSBY
Defendant
Catchwords:
Wills - Applications for probate in solemn form - Testamentary capacity at time each of three wills made - Claim by plaintiff for proof of third, alternatively, second of three wills - Counterclaim by defendant for proof of first of three wills - Lost first will - Destruction by fire - Presumption of destruction with intention to revoke rebutted - Proof of contents of lost will - Application for grant of probate to only one of several named executors - Need for notice to be given to named co-executor - Effect upon second will of alleged ineffective exercise of power of appointment - Whether second will a final and settled expression of testamentary intention or merely provisional or tentative - Suspicious circumstances - Absence of legal advice in relation to the preparation and execution of second and third will - Deceased in advanced stage of terminal illness when third will executed - Allegations of undue influence - Failure to nominate executor - Appointment of executor according to tenor - Contemporary inter vivos transactions alleged to be inconsistent with terms of third will - Alleged failures of several inter vivos transactions with resulting trusts occurring
Legislation:
Duties Act 2008 (WA)
Family Provision Act 1972 (WA)
Transfer of Land Act 1893 (WA)
Wills Act 1970 (WA)
Result:
Declaration that will of 1 December 2008 is the last will of the deceased, Colleen June Hornsby.
Direct that there be a grant of probate in solemn form of law of the 2008 will in favour of the plaintiff, the sole executrix named therein.
The counterclaim propounding the will dated 28 July 1998 be dismissed.
Direct that the caveat against a grant of probate of the 2008 will lodged by the defendant be removed.
Category: A
Representation:
Counsel:
Plaintiff: Mr G D Cobby
Defendant: Mr D H Solomon & Mr M A Blundell
Solicitors:
Plaintiff: Arns & Associates
Defendant: Solomon Brothers
Case(s) referred to in judgment(s):
Alison v Alison (1934) 51 CLR 653
Baker v Batt (1838) 2 Mood CC 317; (1838) 12 ER 1026
Banks v Goodfellow (1870) LR 5 QB 549
Breadner v Granville‑Grossman [2001] Ch 523; [2001] 2 WLR 593
Brown v M'Encroe (1890) 11 LR (NSW) Eq 134
Chapman v Gibson (1791) 3 BRO CC 229; 29 ER 505
Collins v Elstone [1893] P1
Curley v Duff (1985) 2 NSWLR 716
Deeks v Greenwood [2011] WASC 359
Duncan v Cathels (1956) 98 CLR 625; [1956] ALR 1072
Duncan v Equity Trustees Executor & Agency Co Ltd (1958) 99 CLR 513
Hansen v Hansen [2013] WASC 268
Holmes v Coghill (1806) 12 VES Jun 506; 33 ER 79
Keep reading for free
Create a free CaseChat account to read Hornsby v Hornsby [No 2] and more:
- Read every judgment in full
- Ask AI and get answers linked to paragraphs
- See how each paragraph was cited in later cases
- Download judgments as PDF or Word
One click creates your free account or signs you in.
By continuing you agree to the Terms and Privacy Policy.
- Case
- [2014] WASC 434
- Decision Date
CaseChat Overview and Summary
The legal issues before the court included whether the first will had been effectively revoked by the second will, whether the second will was a final and settled expression of testamentary intention, and whether the third will was validly executed and should be admitted to probate. The court considered the circumstances surrounding the execution of each will, including the deceased's state of mind, the presence or absence of legal advice, and the consistency of the wills with other inter vivos transactions. The court also considered the effect of any mistakes or misapprehensions by the deceased as to the legal effect of the terms of the wills.
The court found that the first will had been effectively revoked by the second will, and that the second will was a final and settled expression of testamentary intention. The court held that the third will was invalid due to lack of testamentary capacity at the time of execution, and that the second will should be admitted to probate. The court found that the deceased had the necessary testamentary capacity to execute the first and second wills, but lacked the capacity to execute the third will due to her advanced stage of terminal illness. The court also found that the deceased had been influenced by her son in the execution of the third will, but that this did not render the will invalid.
The court made orders admitting the second will to probate, and dismissing the plaintiff's claim for the admission of the third will to probate. The court also made orders that the defendant provide notice to the plaintiff of the application for probate of the first will, and that the plaintiff be given an opportunity to oppose the application if she wished to do so. The court held that the deceased had appointed the defendant as an executor according to the tenor of the will, and that the defendant was therefore entitled to give notice to the plaintiff as a beneficiary. The court also held that the alleged failures of several inter vivos transactions with resulting trusts occurring did not affect the validity of the second will.
Orders
Orders of the court
Full text does not contain this section.
Background
Background to the litigation
Full text does not contain this section.
Evidence
Evidence Before The Court
Full text does not contain this section.
Decision
Reasons for decision
Full text does not contain this section.
Ratio Decidendi
Legal Principle Established
Nevertheless, the possibility that at the time a will was executed the testator may have contemplated or even intended that at some future time, even possibly in the near future, he or she may need to revise or alter the will by making a subsequent will or codicil is not inconsistent with the first instrument being valid, having been made animo testandi. All wills are revocable by the testator during his or her lifetime so long as testamentary capacity is retained. Any will is ambulatory, that is, that it has no effect and confers no benefit on any person unless and until the testator dies with that will unrevoked - see generally Re Full Board of the Guardianship & Administration Board [2003] WASCA 268; (2003) 27 WAR 475, especially at [58] - [62]. It is an inevitable and commonplace eventuality that people change their wills at intervals during their lifetimes because of changing circumstances: their own prosperity or misfortune; developments within the family involving the birth of children or further children or grandchildren; and many other obvious circumstances. Sometimes a will will be made in haste because the testator is about to embark upon some perilous enterprise, such as a serviceman or woman about to depart for active service. Such instances include patients about to undergo some serious surgical operation and the dire effects of receiving news of a diagnosis of some fatal disease. The urgency which such situations may produce will often result in a testator deciding, quite unconditionally and intentionally, that his or her will should be changed to a new will made in particular terms even if, at the same time, the testator harbours the thought that if he or she survives for any length of time a more fully considered testament might later be made. It is not uncommon for wills of this kind to be made immediately by a spouse following the break-up of the marriage and before any existing will is revoked by eventual divorce, as will now occur by virtue of s 15(2) of the Wills Act. A will made in those circumstances will not be regarded as provisional, tentative or conditional: In the Goods of Cawthron (1863) 3 Sw & Tr 417; In the Estate of Vines [1910] P147; and Re Govier [1950] P237, although those circumstances may give rise to the need for close scrutiny. In the present case, the defendant submits that the will of 29 May 1996 was not valid and effective and, therefore, not capable of revoking the will of 1988 which he is propounding because it did not embody the final expression of testamentary intentions. He also submits that this appears because it contained an ineffective exercise of the power of appointment of Sharon Hornsby as appointor and guardian of the Quinns trust, that being a power not exercisable by will. This latter contention, so it was submitted, demonstrates that Mrs Hornsby was misled as to the effect of the will by wrong advice from the draftswoman, Mrs Keillor, and that the document thereby failed to give effect to her intentions. There is, however, a difference between the absence of any settled intention by a testator to make a will in particular terms and a mistake or misapprehension by the testator as to the legal effect of terms expressed in the document. There is no reason to doubt that Mrs Hornsby executed the May 1996 will intending that it should then operate as her last will according to its terms. If she was mistaken as to the legal effect of the terms of the testament, then that would not invalidate a will. There are many instances of provisions in wills failing to have effect or full effect but such results do not detract from the validity of the remaining provisions of the testament: In the Estate of Beech (dec) [1923] P46 [53] - [54] and Collins v Elstone [1893] P1.