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
Easter v Griffiths (1995) 217 ALR 284
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
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…
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- AGLC
- Power v Smart [2018] WASC 168
- Case
- [2018] WASC 168
- Decision Date
CaseChat Overview and Summary
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
Orders of the court
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Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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