Legal Research
Cases
Howroyd v Howroyd

Howroyd v Howroyd

Case [2011] TASSC 73 22 December 2011

Knowledge and Approval of Contents

Unconscionable Conduct

Succession Law

Type to search within this case.

[2011] TASSC 73

COURT: SUPREME COURT OF TASMANIA

CITATION: Howroyd v Howroyd [2011] TASSC 73

PARTIES:  HOWROYD, Richard John
  v
  HOWROYD, Terence David

FILE NO/S:  423/2009
DELIVERED ON:  22 December 2011
DELIVERED AT:  Hobart
HEARING DATE:  7, 8, 9 and 10 December 2010
JUDGMENT OF:  Wood J

CATCHWORDS:

Succession – Wills, probate and administration – The making of a will – Testamentary instruments – Knowledge and approval of contents – Generally – Circumstances raising suspicion – Will prepared by person taking benefit.

Vernon v Watson [2002] NSWSC 600; Nock v Austin (1918) 25 CLR 519, referred to.
Aust Dig Succession [12]

Succession – Wills, probate and administration – 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.

Banks v Goodfellow (1870) LR 5 QB 549, Bailey v Bailey (1924) 34 CLR 558, referred to.
Wills Act 1992 (Tas), s10.
Aust Dig Succession [8]

REPRESENTATION:

Counsel:
             Plaintiff:  T J Williams
             Defendant:  D F M Zeeman
Solicitors:
             Plaintiff:  Gunson Williams
             Defendant:  Butler McIntyre & Butler

Judgment Number: [2011] TASSC 73
Number of paragraphs: 241

Serial No 73/2011
File No 423/2009

RICHARD JOHN HOWROYD v TERENCE DAVID HOWROYD

REASONS FOR JUDGMENT WOOD J

22 December 2011

A claim has been made that the Court shall decree probate of the will of Denis James Howroyd in solemn form. Mr Howroyd died on 9 July 2007.

The plaintiff, Richard Howroyd, is the nephew of the testator and a solicitor. On Sunday, 8 July 2007, he received a request to attend his uncle in St John's Hospital, Hobart to speak about his will. Richard Howroyd knew his uncle was gravely ill and might be dying. He took instructions for a will at his bed-side and drafted the clauses in long-hand. He had never prepared a deathbed will before. Two women visiting a patient at the hospital agreed to witness the signing of the will. The attesting witnesses recall aspects of the incident, accept they signed the will, but cannot remember seeing Mr Howroyd sign the will in their presence. Mr Howroyd died the following day.

The challenged will is simple and short. It contains some errors, one of which was corrected by Richard Howroyd, but the correction was not initialled by the testator. Standard clauses have not been included.

Richard Howroyd is a residuary beneficiary under the challenged will. The other residuary beneficiary is his brother, Glenn Howroyd.

The defendant, Terence Howroyd, is the testator's youngest brother. He has entered a caveat opposing the grant of probate. He is a beneficiary under the challenged will, but his share of the estate is less substantial than that of his two nephews.

Under an earlier will made by the testator in 2003, Richard Howroyd and his brother, Glenn, were both beneficiaries as was Terence Howroyd. Under that will, Terence Howroyd was to receive a larger share of the estate than Richard Howroyd.…

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 Howroyd v Howroyd

Details

AGLC: Howroyd v Howroyd [2011] TASSC 73
Case: [2011] TASSC 73
Decision Date: 22 December 2011

CaseChat Overview and Summary

The case of Howroyd v Howroyd involved a dispute over the validity of a will, which was challenged on the grounds that it did not truly reflect the deceased's intentions. The matter was heard in the Supreme Court of Victoria. The central issue was whether the will, which was prepared by a beneficiary, properly represented the deceased's testamentary wishes and if the deceased had the requisite knowledge and approval of its contents.

The legal questions before the court included whether the circumstances surrounding the creation of the will raised sufficient suspicion to doubt its validity and whether the preparation of the will by a beneficiary constituted a conflict of interest that could invalidate the document. The court had to determine if the deceased had the necessary knowledge and approval of the will's contents and whether the execution of the will was free from undue influence or coercion.

The court found that the will was valid, dismissing the contentions raised by the challengers. It held that the circumstances did not raise sufficient suspicion to doubt the will's validity, and the fact that a beneficiary prepared the will did not inherently invalidate it. The court concluded that the deceased had knowledge of and approved the contents of the will, and there was no evidence of undue influence or coercion. Therefore, the will was deemed to accurately reflect the deceased's intentions.

The final orders of the court upheld the validity of the will, affirming the rights of the beneficiaries named in the document. The challenges brought against the will were dismissed, and the court recognised the will as a valid testamentary instrument.

Orders