Terence David Howroyd v Richard John Howroyd

[2012] HCASL 197

TERENCE DAVID HOWROYD

v

RICHARD JOHN HOWROYD

[2012] HCASL 197
H4/2012

1. The respondent made an application to the Supreme Court of Tasmania for the pronouncement of a will and grant of probate.  The pronouncement of the will was contested by the applicant who claimed that the testator lacked testamentary capacity at the relevant time, that the testator did not know and approve of the contents of the will and that the will was not signed in the presence of two witnesses as required by s 10 of the Wills Act 1992 (Tas).

2. On 23 December 2011, the Supreme Court (Wood J) pronounced the validity of the will and ordered a grant of probate.  The applicant appealed to the Full Court of the Supreme Court of Tasmania.

3. On 11 May 2012, the Full Court (Crawford CJ, Evans and Porter JJ) dismissed the appeal and held that the primary judge did not err in concluding that the concerns raised by the suspicious circumstances surrounding the preparation and execution of the will had been dispelled.  The Full Court was satisfied that the testator had testamentary capacity and knew and approved of the contents of the will at the relevant time.  The applicant seeks special leave to appeal against the decision of the Full Court.

4. The applicant asserts that the Full Court erred in the application of established legal principles guiding the curial determination of an issue as to whether a testator knew and approved the contents of a will.  No error of principle is made out.  The application otherwise seeks to raise issues of fact which are inappropriate for consideration by this Court and as to which there is no reason to doubt the correctness of the approach taken by the Full Court.  Special leave is refused with costs.

5. Pursuant to r 41.11.1 of the High Court Rules 2004 we direct the Registrar to draw up, sign and seal an order dismissing the application with costs.

S.M. Kiefel
12 December 2012 S.J. Gageler