Perpetual Trustees WA Ltd v Elliott - [2009] WASC 76

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CIVIL

CITATION: PERPETUAL TRUSTEES WA LTD -v- ELLIOTT [2009] WASC 76

CORAM: HASLUCK J

HEARD: 16 MARCH 2009

DELIVERED : 1 APRIL 2009

FILE NO/S: CIV 1492 of 2007

MATTER :Estate of HILDA MAY GRAY late of Unit 2, 261-271 Wharf Street, Cannington, Western Australia (Dec)

BETWEEN: PERPETUAL TRUSTEES WA LTD (ABN 98 008 666 886)
Plaintiff
AND
ANNE LENORE ELLIOTT
First Defendant
HENRY MAITLAND GRAY
Second Defendant
SEVENTH-DAY ADVENTIST CHURCH (WESTERN AUSTRALIAN CONFERENCE) LTD (ACN 104 553 808)
Third Defendant
LILLA ANN RICHES
Fourth Defendant

Catchwords:

Succession - Wills, probate and administration - Application for proof of will in solemn form - Whether testatrix had testamentary capacity - Whether will valid as a testamentary instrument - Factors relevant to capacity of testator - Rules concerning the award of costs

Legislation:

Guardianship and Administration Act 1990 (WA)
Wills Act 1970 (WA), s 8

Result:

Held that probate of the subject will should be granted in solemn form

Category: B

Representation:

Counsel:

Plaintiff:     Mr P J Mugliston
First Defendant              :     Mr D C Leask
Second Defendant         :     No appearance
Third Defendant            :     Ms C K Savas
Fourth Defendant           :     No appearance

Solicitors:

Plaintiff:     Kott Gunning
First Defendant              :     Leask & Co
Second Defendant         :     No appearance
Third Defendant            :     Corser & Corser
Fourth Defendant           :     No appearance

Case(s) referred to in judgment(s):

Bailey v Bailey (1924) 34 CLR 558
Banks v Goodfellow (1870) LR 5 QB 549
Re Full Board of the Guardianship & Administration Board [2003] WASCA 268; (2003) 27 WAR 475
Roebuck v Smoje [2001] WASC 95
Silvester v Tarobina, unreported; SCt of WA; (Anderson J); 13 February 1996; Library No 960062
The Public Trustee v Kita [2004] WASC 38
West Australian Trustee Executor & Agency Co Ltd v Holmes [1961] WAR 144
Wheatley v Edgar [2003] WASC 118
Worth v Clasohm (1952) 86 CLR 439

HASLUCK J:

Introduction

These proceedings concern the estate of Hilda May Gray who died on 27 December 2006 at 94 years of age.
At the time of her death the plaintiff, Perpetual Trustees WA Ltd, was holding a will executed by the deceased in the presence of two witnesses on 26 May 2002, being a will in which the plaintiff was named as executor.
The first defendant is the deceased's daughter. It soon became apparent that the first defendant disputed the validity of the subject will, principally on the ground that as at 26 May 2002 the deceased lacked testamentary capacity. This made it necessary for the plaintiff to commence these proceedings for an order that probate of the subject will in solemn form be granted to the plaintiff.
The first defendant contended by way of counterclaim that probate in common form or solemn form should be granted in respect of a will executed by the deceased in the presence of two witnesses on 20 November 1996.
The residuary estate of the deceased under both the 1996 will and the subject will…

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.

Keep reading for free

Create a free CaseChat account to read Perpetual Trustees WA Ltd v Elliott 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

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2009] WASC 76
Decision Date: 1 APRIL 2009

CaseChat Overview and Summary

In the case of Perpetual Trustees WA Ltd v Elliott, the dispute centred around the validity of a will and the testamentary capacity of the deceased, Hilda Gray, at the time of its creation. The matter was heard by the Supreme Court of Western Australia. The primary issue was whether Hilda Gray possessed the necessary testamentary capacity when she executed the will on 26 May 2002, and whether the will should be granted probate in solemn form. This required the court to consider various factors relevant to testamentary capacity and the legal framework governing wills and administration orders.

The court was tasked with determining if Hilda Gray had the requisite mental capacity to understand the nature of making a will and its effects, particularly in light of an administration order made in late 2001 under the Guardianship and Administration Act. The Full Court of the Supreme Court of Western Australia had previously ruled that an administration order does not determine testamentary capacity. The court also needed to consider the Full Court's decision in Re: The Full Board of the Guardianship and Administration Board, which clarified that section 77(1) of the Act does not apply to wills made by a testator subject to an administration order. Therefore, the court had to evaluate whether Hilda Gray indeed lacked the necessary capacity to make a valid will based on the evidence presented.

The Supreme Court found that the existence of the administration order did not conclusively determine Hilda Gray's capacity to make a valid will. The court held that the issue of testamentary capacity must be resolved based on the evidence and the specific circumstances of the case. The court dismissed the contention that the administration order rendered her incapable of making a valid will and concluded that the will should be granted probate in solemn form. This decision underscores the necessity for a case-by-case assessment of testamentary capacity, independent of prior administrative orders.

Orders

Orders of the court

Held that probate of the subject will should be granted in solemn form

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

By letter dated 2 April 2007 the plaintiff's solicitors responded in this way (omitting the inessential parts):As you are aware, the appointment of your client as plenary administrator of the estate was made under Part 6 of the Guardianship and Administration Act (the 'Act'). Specifically the appointment was made under section 64(1). Under section 77(1) of the Act, so long as there is a determination in force that a person is in need of an administrator, that person is stated to be incapable of entering into contracts or making any disposition of their estate or part thereof, or appointment an agent or attorney.We draw your attention to the decision of the Full Court of the Supreme Court of Western Australia in the matter of Re: The Full Board of the Guardianship and Administration Board [2003] WASCA 268 in which the Full Court constituted by 5 judges determined that section 77(1) of the Act do not apply to any will or testamentary instrument made by a testator who is the subject of a declaration by the Guardianship and Administration Board under section 64(1) of that Act.The Court held that the reasons are that the making of a will or other testamentary instrument does not constitute any disposition of the testator's property and that the eventual devolution and distribution of the testators' property if any, which will take place on his or her death in accordance of the terms of that will and, if they apply, the laws relating to intestate distribution, is not a distribution of property or a state to which section 77(1) of the Act applies.The Court further determined that any issue of whether or not such a testator possessed the requisite testamentary capacity at the time the will or other instrument was made will need to be determined in the usual way on the facts of the particular case on any subsequent application for a grant of probate or letters of administration with the will annexed.Accordingly, there is very clear legal authority in support of the fact that the existence of the Administration Order did not determine that Hilda Gray lacked capacity to make a valid will. Whether she in fact lacked capacity to make a valid will will need to be determined on the evidence available. I pause here to say that, in my view, the summary provided by the plaintiff's solicitors as to the effect of the decision of the Full Court in the Full Board case is correct. It follows from this and from my earlier observations that I am of the view that the existence of the administration order did not determine that the deceased lacked capacity to make a valid will as at 26 May 2002. That is an issue which must be determined by this court after trial having regard to the issues raised by the pleadings. Moreover, it follows from the Kott Gunning letter that the first defendant was put on notice, prior to commencement of the present proceedings, that the making of an administration order in late 2001 could not be regarded as a decisive determination of the deceased's testamentary capacity as at 26 May 2002.