The Public Trustee in and for the State of Western Australia v Drennan

The case before the court involved the Public Trustee in and for the State of Western Australia challenging the validity of a codicil to a will. The testator, Mrs Drennan, had executed a codicil to her will which was not witnessed, thereby potentially rendering it invalid under section 10 of the Wills Act. The court was tasked with determining whether the codicil could be given effect under section 35 of the Act, which allows for a codicil to be valid even if it was not witnessed, provided it was intended to be a testamentary writing and the testator had testamentary capacity at the time of execution.

The primary legal issue before the court was whether the requirements for testamentary capacity had been met by Mrs Drennan at the time she executed the codicil. The onus of proving testamentary capacity fell on the Public Trustee. The court had to consider whether there was sufficient evidence to conclude that Mrs Drennan did not have the requisite capacity, and if so, whether this affected the validity of the codicil under section 35.

The court found that there was no evidence to suggest that Mrs Drennan lacked testamentary capacity when she executed the codicil. It was held that the onus of proving incapacity had not been discharged by the Public Trustee. The court concluded that, in the absence of evidence to the contrary, Mrs Drennan had the necessary testamentary capacity, and therefore, the codicil could be given effect under section 35 of the Wills Act. The court's decision affirmed the validity of the codicil, as it met the criteria set out in the Act for testamentary writings that are not witnessed.

The court ordered that the codicil to Mrs Drennan's will be recognised and given effect, as it was validly executed and Mrs Drennan had testamentary capacity at the relevant time. The Public Trustee's challenge to the codicil was dismissed.