Power v Smart

Case [2018] WASC 168 (S)


JURISDICTION     :   SUPREME COURT OF WESTERN AUSTRALIA

IN CIVIL

CITATION: POWER -v- SMART [2018] WASC 168

CORAM:   DERRICK J

HEARD:   9-12 APRIL 2018

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

Category:    B

Representation:

Counsel:

First Plaintiff : Mr M S Macdonald
Second Plaintiff : Mr M S MacDonald
Defendants : Mr G A Rabe

Solicitors:

First Plaintiff : Macdonald Rudder
Second Plaintiff : Macdonald Rudder
Defendants : Summers Legal

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

Bailey v Bailey [1924] HCA 21; (1924) 34 CLR 558

Banks v Goodfellow (1870) LR 5 QB 549

Brown v Wade [2010] WASC 367

Easter v Griffiths (1995) 217 ALR 284

Fisher v Kay [2010] WASC 160

In the Will of Wilson (1897) 23 VLR 197

Jones v Dunkel [1959] HCA 8; (1959) 101 CLR 298

McKinnon v Voigt [1998] 3 VR 543

Nicholson v Knaggs [2009] VSC 64

Nock v Austen (1918) 25 CLR 519

Re The Full Board of the Guardianship and Administration Board [2003] WASCA 268; (2003) 27 WAR 475

Romascu v Manolache [2011] NSWSC 1362

Saunders v The Public Trustee [2015] WASCA 203

Schellenberg v Tunnel Holdings Pty Ltd [2000] HCA 18; (2000) 200 CLR 121

The Estate of Juliana Voros; Cooney & Ors v Cherry [2016] NSWSC 1603

Timbury v Coffee [1941] HCA 22; (1941) 66 CLR 277

Tobin v Ezekiel; Estate of Lily Ezekiel [2011] NSWSC 81

Veall v Veall [2015] VSCA 60

Vernon v Watson; Estate Clarice Isabel Quigley Dec'd [2002] NSWSC 600

Wingrove v Wingrove (1885) 11 PD 81

DERRICK J:

Introduction

  1. 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.

  2. 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.

  3. 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…

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Power v Smart [2018] WASC 168 (S)
Case
[2018] WASC 168 (S)
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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.

Orders

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Background

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