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McKay v Hearps

McKay v Hearps

Case [2021] TASSC 62 16 December 2021

Testamentary Capacity

Cognitive Impairment

Res Judicata

Succession Law

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[2021] TASSC 62

COURT: SUPREME COURT OF TASMANIA

CITATION: McKay v Hearps [2021] TASSC 62

PARTIES:  McKAY, Lisa Jo-Anne
  v
  HEARPS, Daralee Anne

FILE NO:  2334/2018
DELIVERED ON:  16 December 2021
DELIVERED AT:  Hobart
HEARING DATES:  1-3 and 19 February 2021
JUDGMENT OF:  Brett J
CATCHWORDS:

Succession – Testamentary capacity – Loss or lack of capacity to make statutory wills – Whether cognitive deficit – Final will executed substantially different than previous wills – Removal of family members as beneficiaries – Sole beneficiary to receive whole of estate absolutely – Beneficiary befriended by testator months before his death– Beneficiary to receive estate as payment for providing care – Evidence of general practitioner and legal practitioner – Cognitive impairment but requisite legal capacity.

Banks v Goodfellow (1870) LR 5 QB 549; Nock v Austin (1918) 25 CLR 519; Wheatley v Edgar [2003] WASC 118; Howroyd v Howroyd [2011] TASSC 73; Sutherland v Bukoven [2019] TASSC 20, referred to.
Brownell v Robinson [2017] TASFC 11, followed.
Parker v Felgate (1883) LR 8 PD 171, applied.
Timbury v Coffee (1941) 66 CLR 277; Re Estate of Griffiths deceased (1995) 217 ALR 284, considered.

Aust Dig Succession [1008]

Succession – Testamentary instruments – Knowledge and approval of contents – Circumstances arousing suspicion – Final will executed substantially different than previous wills – Removal of family members as beneficiaries – Sole beneficiary to receive whole of estate absolutely – Beneficiary befriended by testator months before his death– Beneficiary to receive estate as payment for providing care – Testator instigated change of will – Persuasive reasons for exclusion of family members – Testator knew and approved contents of will.

Brownell v Robinson [2017] TASFC 11, followed.
Nock v Austin (1918) 25 CLR 519; Timbury v Coffee (1941) 66 CLR 277; Wheatley v Edgar [2003] WASC 118; Howroyd v Howroyd [2011] TASSC 73; Sutherland v Bukoven [2019] TASSC 20, referred to
Parker v Felgate (1883) LR 8 PD 171, applied.
Aust Dig Succession [1021]

REPRESENTATION:

Counsel:
             Plaintiff:  R Meredith
             Defendant:  R Foon
Solicitors:
             Plaintiff:  WMM Law
             Defendant:  Douglas and Collins

Judgment Number: [2021] TASSC 62
Number of paragraphs: 78

Serial No 62/2021
File No 2334/2018

LISA JO-ANNE McKAY v DARALEE ANNE HEARPS

REASONS FOR JUDGMENT BRETT J

16 December 2021

Albert James Turner (the testator) died on 21 July 2017. He was 87 years of age at the time of his death. He had been married twice, and had survived both wives. He had no biological children, but he had two stepsons, who were the children of his second wife, and a number of step-grandchildren. His estate at the time of his death consisted of his house at Perth, its contents, personal effects, a bank account and some other relatively modest cash assets. The estimated net value of the estate is $316,319.91.
The plaintiff and the testator had had a close friendship since first meeting…

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 McKay v Hearps

Details

AGLC: McKay v Hearps [2021] TASSC 62
Case: [2021] TASSC 62
Decision Date: 16 December 2021

CaseChat Overview and Summary

The case of McKay v Hearps involved a dispute over the validity of a final will executed by the deceased. The plaintiff, McKay, challenged the will on the grounds that the deceased lacked testamentary capacity at the time of its execution. The dispute was heard in the Supreme Court of Queensland. The deceased had previously executed several wills that named family members as beneficiaries, but the final will substantially differed by removing these family members and naming a single beneficiary, Hearps, who had befriended the deceased months before his death. The deceased claimed that Hearps would receive the estate as payment for providing care.

The court was required to determine whether the deceased had the requisite legal capacity to execute the final will. This involved examining whether the deceased had a cognitive deficit that would affect his capacity to make a will, and whether the substantial changes in the final will were indicative of a lack of testamentary capacity. The court considered evidence from the deceased's general practitioner and legal practitioner, who both confirmed that while the deceased had cognitive impairment, he retained the legal capacity to make a will.

The court found that despite the deceased's cognitive impairment, he had the requisite legal capacity to make the final will. The changes in the will were not so substantial as to indicate a lack of testamentary capacity. The court noted that the deceased had been clear and consistent in his instructions to his legal practitioner regarding the changes to his will, and that the beneficiary had provided care for the deceased without expectation of compensation. The court also found that the evidence did not support a finding that the deceased lacked testamentary capacity at the time of executing the final will.

The final orders of the court were that the final will of the deceased was valid and should be admitted to probate. The sole beneficiary, Hearps, was entitled to receive the whole of the deceased's estate absolutely. The court rejected the plaintiff's claim that the deceased lacked testamentary capacity and dismissed the proceedings with costs.

Orders