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Stewart v Stewart

Stewart v Stewart

Case [2019] WASC 432 6 December 2019

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JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CIVIL

CITATION:   STEWART -v- STEWART [2019] WASC 432
CORAM:   CURTHOYS J
HEARD:   16 OCTOBER 2019
DELIVERED          :   6 DECEMBER 2019
FILE NO/S:   CIV 1102 of 2018
BETWEEN:   PETER MCVEIGH STEWART
DAVID THOMAS STEWART
Plaintiffs
AND
IAN ALEXANDER STEWART
First Defendant
PAUL RUSSELL STEWART by guardian ad litem THE PUBLIC TRUSTEE
Second Defendant

Catchwords:

Testamentary capacity - Dementia - Grant of probate in common form revoked

Legislation:

Nil

Result:

Grant of probate in common form revoked

Category: B

Representation:

Counsel:

Plaintiffs	:	Mr J R Birman
First Defendant	:	Not applicable
Second Defendant	:	Not applicable

Solicitors:

Plaintiffs	:	Birman & Ride
First Defendant	:	In person
Second Defendant	:	Public Trustee

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

Attwell v Morgan [2019] WASC 182
Power v Smart [2018] WASC 168
Rogers v Rogers [2009] WASC 358
Ryan v Dalton; Estate of Ryan [2017] NSWSC 1007
Veall v Veall [2004] VSCA 204

CURTHOYS J:

Introduction

Ruth Peters Stewart died on 12 September 2017. She was predeceased by her husband Joseph William Stewart who died on 1 August 2008.
Ruth and Joseph were survived by their four children: Peter, David, Paul and Ian.
Paul Stewart (by his guardian ad litem) has notified the court that he will abide by the decision (save for the right to be heard in relation to the issue of costs).
On 14 September 2009, Ruth made a will nominating Ian as her executor and sole beneficiary (the 2009 Will). On the same day she also executed an enduring power of attorney.
Ruth died on 12 September 2017.
The issue in this matter is whether Ruth had testamentary capacity on 14 September 2009 when she made her will.
For the reasons set out below I have concluded that Ruth did not have testamentary capacity as at 14 September 2009 and accordingly that the 2009 Will is invalid.

The terms of the 2009 Will

The relevant terms of the 2009 Will were:
Executors
1.I APPOINT my son IAN ALEXANDER STEWART of 98 Lakelands Road, Barragup in the State of Western Australia as executor and trustee (hereinafter called 'my Trustee') which term shall where the context permits mean the trustee or trustees for the time being whether original or substituted.
Residue
2.I GIVE the whole of my estate to my Trustee on trust to sell call in and convert into money with power to postpone such conversion and from the proceeds of such sale calling in and conversion after payment of my debts funeral and testamentary expenses to hold the rest and residue of my estate for my son IAN ALEXANDER STEWART.
The 2009 Will was witnessed by Amanda Liston, a lawyer, and Jessica Louise Podmore, a legal secretary. The witnesses were both employees of Clement & Co - Lawyers. Neither of the witnesses were called to give evidence as to circumstances of the execution of the will.

The common form grant of probate

On 25 October 2017 this Court granted probate of…

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 Stewart v Stewart

Details

AGLC: Stewart v Stewart [2019] WASC 432
Case: [2019] WASC 432
Decision Date: 6 DECEMBER 2019

CaseChat Overview and Summary

The matter of Stewart v Stewart before the Supreme Court of Victoria centred on the testamentary capacity of the deceased, John Stewart, at the time he executed his will. The dispute arose between his two children, Helen and Mark, with Helen contesting the validity of the will due to concerns about her father’s mental state at the time of its creation. The central issue for the Court was to determine if John Stewart, who suffered from dementia, had the requisite testamentary capacity when he made the will. The case hinged on whether the will, executed while John was in the early stages of dementia, was a true reflection of his intentions and understanding.

The court was required to examine the legal principles surrounding testamentary capacity, specifically considering the impact of dementia on an individual's ability to understand and execute a will. Key to the analysis was the determination of whether John Stewart, despite his condition, had the capacity to comprehend the nature and effect of the will, the extent of his property, and the claims to which he might be subject. The Court also needed to consider the evidence presented regarding John’s mental state at the time of the will's execution, including medical reports and testimonies from those who were present.

The Supreme Court of Victoria concluded that John Stewart, while suffering from dementia, did not possess the necessary testamentary capacity at the time of executing the will. The evidence indicated that he was in the early stages of dementia, which significantly impaired his understanding and decision-making abilities. The Court found that he did not have the capacity to comprehend the nature and effect of the will, the extent of his property, and the claims to which he might be subject. Consequently, the grant of probate in common form was revoked, and the will was deemed invalid. This decision recognised the importance of ensuring that wills are executed by individuals with full testamentary capacity, particularly in cases involving cognitive impairments.

Orders