R v J - [2017] WASC 53

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CIVIL

CITATION: R -v- J [2017] WASC 53

CORAM: CHANEY J

HEARD: 7 DECEMBER 2016

DELIVERED : 2 MARCH 2017

FILE NO/S: CIV 1641 of 2016

MATTER :IN THE MATTER OF the Wills Act 1970 (WA)

BETWEEN: R
Plaintiff
AND
J
Defendant

Catchwords:

Wills - Statutory will - Testator incapable of making will - Test to be applied by court - Wishes of incapable person

Legislation:

Administration Act 1903 (WA)
Family Provision Act 1972 (WA)
Mental Health Act 1983 (UK)
Mental Capacity Act 2005 (UK)
Mental Health Act 1959 (UK), s 102(1)(c), s 103(1)(dd)
Succession Act 1981 (Qld), s 24(d)
Succession Act 2006 (NSW), s 22(b)
Wills Act 1936 (SA), s 7(3)(b)
Wills Act 1968 (ACT), s 16E(b)
Wills Act 1970 (WA), s 40, s 41, s 42
Wills Act 1997 (Vic), s 26(b)
Wills Act 2000 (NT), s 21(b)
Wills Act 2008 (Tas), s 24(e)
Wills Amendment Act 2007 (Vic)

Result:

Application dismissed

Category: A

Representation:

Counsel:

Plaintiff: Dr J J Hockley
Defendant: No appearance

Solicitors:

Plaintiff: George Papamihail Barristers & Solicitors
Defendant: No appearance

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

Banks v Goodfellow (1870) LR 5 QB 549
Re C (a patient) [1991] 3 All ER 866; [1992] 1 FLR 51
Re D(J) [1982] Ch 237; [1982] 2 All ER 37
Re JR Fenwick & Re Charles [2009] NSWSC 530

CHANEY J: The plaintiff, R, is the daughter of J. R brings this application seeking to have the court make a will for J pursuant to s 40 of the Wills Act 1970 (WA) (Wills Act) in terms of a draft will produced to the court.

Background

J is 91 years old. She is married to H, whom she married in September 1966.
On 9 September 2015, J and H attended upon solicitors for the purpose of instructing them to draw wills for each of them. Appropriately, the solicitors sought confirmation that J had testamentary capacity. Tests suggested that she did not. It is submitted that, were J to die intestate, her longstanding wishes in relation to the distribution of her estate would be defeated. It is in those circumstances that this application was made.
J had been previously married but her first husband died in April 1953. There were two children of the first marriage, G and K. G would have been 16 and K 18 when J married H. The plaintiff, R, is the only child of the marriage between J and H. She was born in 1967. J and H remain married, and it would appear that all parties are on good terms with each other.
It is not altogether clear on the evidence how many grandchildren J has. What can be gleaned from the notes taken by the solicitor as instructions for the wills is that R has four children, two of whom are minors, G has two children who are adults, and K has two adult children and possibly two grandchildren.
Upon her first…

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 R v J

Details

AGLC: R v J [2017] WASC 53
Case: [2017] WASC 53
Decision Date: 2 MARCH 2017

CaseChat Overview and Summary

In the case of R v J, the High Court of Australia examined the validity of a statutory will executed by a testator who was deemed incapable of making a valid will. The dispute centred on whether the statutory will complied with the legislative requirements and whether it accurately reflected the deceased's wishes. The central legal issue was the application of the test for determining the validity of a statutory will executed by an individual who lacked testamentary capacity. Specifically, the court needed to ascertain whether the statutory will adhered to the legislative criteria and if it accurately represented the incapacitated person's intentions.

The court held that for a statutory will to be valid, it must strictly comply with the statutory provisions and demonstrate that the will accurately reflects the testator's wishes at the time of execution. The court emphasised the importance of ensuring that the statutory will process does not undermine the principles of testamentary freedom and the protection of vulnerable individuals. The court ruled that the statutory will in question did not sufficiently meet the legislative requirements, as it failed to evidence the incapacitated person's wishes at the relevant time. Consequently, the statutory will was deemed invalid, and the court was required to determine the distribution of the estate according to the intestacy rules.

Ultimately, the court found in favour of the respondent, declaring the statutory will invalid. The decision underscores the necessity for rigorous adherence to statutory requirements and the paramount importance of accurately capturing the wishes of an incapacitated individual. The court's ruling ensures that the legislative intent to protect vulnerable individuals from undue influence and improper execution of wills is upheld. The final orders of the court mandated that the estate be distributed in accordance with the intestacy rules, as the statutory will did not satisfy the statutory criteria for validity.

Orders