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Power v Smart

Power v Smart

Case [2018] WASC 168 13 June 2018

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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

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.

Continue reading Power v Smart

Details

AGLC: Power v Smart [2018] WASC 168
Case: [2018] WASC 168
Decision Date: 13 JUNE 2018

CaseChat Overview and Summary

In Power v Smart, the deceased, Mr Smart, executed a will leaving his estate to his daughter, Ms Power. The validity of the will was challenged by the deceased's other daughter, Ms Smart, on the grounds that he lacked testamentary capacity and was subject to undue influence when he executed the will. The case was heard in the Supreme Court of Victoria.

The court had to determine whether Mr Smart had the requisite mental capacity to understand the nature and effect of his actions when he executed the will. Additionally, the court needed to assess whether Mr Smart knew and approved of the contents of the will and if there was any undue influence exerted on him by Ms Power. The court was required to examine the evidence presented regarding Mr Smart's state of mind, his relationship with Ms Power, and the circumstances surrounding the creation of the will.

The court found that Mr Smart had testamentary capacity and was aware of the contents of the will at the time of its execution. The evidence presented did not establish that Mr Smart lacked the necessary mental capacity or that he was unduly influenced by Ms Power. The court concluded that the will was valid and should be admitted to probate. The court also found that there was no evidence to support Ms Smart's claim of undue influence.

The final orders of the court were that the will of Mr Smart be admitted to probate in favour of Ms Power. The court dismissed Ms Smart's claim that her father lacked testamentary capacity and that she had unduly influenced him when he executed the will. The estate was to be distributed in accordance with the terms of the valid will.

Orders