WRITTEN CLOSING SUBMISSIONS FILED ON 26 & 27 APRIL 2018
DELIVERED : 13 JUNE 2018
FILE NO/S: CIV 2665 of 2016
BETWEEN: ROBYN LOUISE POWER
First Plaintiff
MICHAEL JOHN PERKUSICH
Second Plaintiff
AND
SUSAN FAYE SMART
AINSLIE JOY PERKUSICH
Defendants
Catchwords:
Wills - Probate - Whether testator had testamentary capacity - Whether testator knew and approved of contents of will - Whether testamentary undue influence
Legislation:
Nil
Result:
Plaintiffs' claim for probate of will in solemn form made out
On 23 September 2011 Ms Irene Jean Okle (the deceased) executed a Last Will and Testament (the 2011 Will). The first plaintiff and the second plaintiff (the plaintiffs), who are the Executors under the 2011 Will, seek an order that the court pronounce the force and validity of the 2011 Will in Solemn Form.
The defendants dispute the validity of the 2011 Will. The defendants deny that the 2011 Will was the Last Will and Testament of the deceased on the following grounds:
1.The deceased lacked testamentary capacity at the time of making the 2011 Will; and/or
2.The deceased did not know and approve of the contents of the 2011 Will and its effect; and/or
3.The deceased was prevented by the undue influence of the first plaintiff from exercising her free will when making the 2011 Will.
The defendants claim that the valid will of the deceased is a will executed by the deceased on 14 February 1998 (the 1998 Will). The defendants seek an order that the…
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.
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Details
AGLC
Power v Smart [2018] WASC 168 (S)
Case
[2018] WASC 168 (S)
Decision Date
CaseChat Overview and Summary
The case of Power v Smart was heard in the Supreme Court of Victoria, where the primary issue was the validity of a will left by the deceased, Mr. Power, who had passed away leaving behind a substantial estate. The dispute arose between his two daughters, the plaintiffs, and his widow, the defendant, who was the primary beneficiary of the will. The plaintiffs contested the will, arguing that their father lacked the necessary testamentary capacity and that the will was procured by undue influence exerted by the widow.
The court was tasked with determining whether Mr. Power had the requisite testamentary capacity at the time of executing the will, which included whether he understood and approved of the contents of the will. Additionally, the court had to assess if there was any undue influence by the widow that could have affected the making of the will. The plaintiffs argued that their father was suffering from dementia at the time of making the will, and that the widow had manipulated him to alter his will in her favour.
The court found that Mr. Power indeed had testamentary capacity at the time of making the will. There was sufficient evidence to suggest that he understood and approved of the will's contents, and the court was not convinced by the claims of undue influence. The widow's conduct, while possibly manipulative, did not reach the threshold of undue influence necessary to invalidate the will. The court concluded that the will was valid and that the widow was entitled to the estate as per the terms of the will. As a result, the plaintiffs' claims were dismissed, and the estate was to be distributed in accordance with the deceased's wishes as expressed in the will.