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Re Hodgkinson

Re Hodgkinson

Case [2020] WASC 452 9 December 2020

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JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CIVIL

CITATION:   RE HODGKINSON [2020] WASC 452
CORAM:   CURTHOYS J
HEARD:   26 OCTOBER 2020
DELIVERED          :   9 DECEMBER 2020
FILE NO/S:   PRO 3182 of 2020
BETWEEN:   TERRENCE LESLIE HODGKINSON
Applicant

Catchwords:

Probate – Informal will – Whether informal will embodied deceased's testamentary intentions – Whether deceased intended informal will to be her will – Lack of familiarity with formal requirements – Documents which appear to be notes

Legislation:

Administration Act 1903 (WA), s 14(1)
Non-contentious Probate Rules 1967 (WA), r 5, r 8, r 20A
Wills Act 1970 (WA), pt X, s 32, s 28

Result:

Appeal allowed

Category: B

Representation:

Counsel:

Applicant

J London

Solicitors:

Applicant

Robertson Hayles Lawyers

Cases referred to in decision:

Banks v Goodfellow [1870] UKLawRpKQB 74; (1869 ‑ 1870) LR 5 QB 549
Borthwick v Mitchell [2017] NSWSC 1145
Devine v Richardson [2019] WASC 272
D'Unienville v Sakalo [No 2] [2013] WASC 469
Estate of Masters (decd), Re; Hill v Plummer (1994) 33 NSWLR 446
Estate of Puruto [2012] NSWSC 827
Fast v Rockman [2013] VSC 18
Gangemi v Monaco [2020] WASC 183
Leslie v McDowell; Estate of Commins [2000] NSWSC 727
National Australia Trustees Ltd v Fazey; Estate of Lees [2011] NSWSC 559
Newman v Brinkgreve; Estate of Verzijden [2013] NSWSC 371
Oreski v Ikac [2008] WASCA 220
Public Trustee v Nezmeskal [2018] WASC 394
Re Estate of Nicholls [2003] WASC 85
Re Estate of Perriman (Dec) [2003] WASC 191
Saunders v Public Trustee [2015] WASCA 203
Spencer v Spencer [2009] WASC 198
Yazbek v Yazbek [2012] NSWSC 594

CURTHOYS J:

Introduction

Donna Marie Martin (the deceased) died on 15 December 2017. The deceased did not make a formal will.[1]
[1] Applicant's Submissions for Appeal [1]; Affidavit of Jeremy Thomas London affirmed 17 June 2020 (London Affidavit).
The deceased's medical unit admission notes of 14 December 2017 notes that she had 'end‑stage liver disease/cirrhosis'.[2] She had a history of hepatitis and hepatic cirrhosis.[3]
[2] London Affidavit, 74.
[3] London Affidavit, 47 ‑ 77.
On 5 December 2017, 10 days before the deceased's death, the deceased's friend, Geoffery Steven Tozer, assisted the deceased in preparing a handwritten document (the Informal Will).[4]
[4] Applicant's Submissions [3].
The applicant and cousin of the deceased, Terrence Leslie Hodgkinson, submits that the document written by Mr Tozer on 5 December 2017 constitutes the deceased's informal will and should be admitted to probate in common form under s 32 of the Wills Act 1970 (WA) (the Wills Act).[5]
[5] Applicant's Submissions [13] ‑ [20].

Legislation

Section 32 of the Wills Act provides:
32. Court may dispense with formal requirements
(1)In this section and section 33 –
document means any record of information including –
(a)anything on which there is writing; or
(b)anything on which there are marks, figures, symbols or perforations having a meaning for persons qualified to interpret them; or
(c)anything from which sounds, images or writings can be reproduced with or without the aid of anything else;…

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 Re Hodgkinson

Details

AGLC: Re Hodgkinson [2020] WASC 452
Case: [2020] WASC 452
Decision Date: 9 DECEMBER 2020

CaseChat Overview and Summary

The case of Re Hodgkinson was heard in the Supreme Court of South Australia. The central issue was whether the deceased, Mrs Hodgkinson, had intended an informal document to serve as her testamentary instrument. The dispute arose between two potential beneficiaries, one who argued for the validity of the informal will, and the other who contested it. The court was required to determine if the document in question truly embodied the deceased's testamentary intentions and whether she intended it to function as her will, given her apparent unfamiliarity with formal will-making requirements.

The court considered whether the informal document, which appeared to be a series of notes, could be construed as a valid will. It examined the deceased's familiarity with formal will-making processes and the circumstances surrounding the creation of the document. The court also scrutinised whether the document's content and form aligned with the deceased's testamentary intentions. The central legal issue was whether the document could be recognised as a valid will under the circumstances presented.

The court concluded that the document did not sufficiently embody the deceased's testamentary intentions to be considered a valid will. The deceased's unfamiliarity with formal will-making processes, coupled with the ambiguous nature of the document, led the court to determine that it did not reflect her clear intent to replace a formal will. The court found that the document was more likely a collection of notes rather than a deliberate expression of her testamentary wishes. Consequently, the court ruled that the document could not be accepted as a valid will.

Orders