The Public Trustee v Hinkley - [2007] WASC 271

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CIVIL

CITATION: THE PUBLIC TRUSTEE -v- HINKLEY [2007] WASC 271

CORAM: McKECHNIE J

HEARD: 24 OCTOBER 2007

DELIVERED : 24 OCTOBER 2007

FILE NO/S: CIV 2068 of 2006

MATTER :Will and Estate of FLORENCE BEATRICE HINKLEY (dec)

BETWEEN: THE PUBLIC TRUSTEE as Executor of the Estate of FLORENCE BEATRICE HINKLEY
Plaintiff
AND
WILLIAM WILFRED HINKLEY
EUGENE ROSSLYN HINKLEY
RONALD JAMES HINKLEY
LEONARD ROY HINKLEY
REGINALD ROBERT HINKLEY
REUBEN EDWARD HINKLEY
WALTER DAVID HINKLEY
FLORENCE LEAH JOYCE MCKENZIE
RHONDA DOROTHY JEAN HINKLEY
MARLENE BEATRICE MAY HINKLEY
Defendants

Catchwords:

Wills and probate - Testatrix suffering from dementia - Whether lacking in testamentary capacity - Turns on own facts

Legislation:

Nil

Result:

Pronouncement for force and validity of will

Category: B

Representation:

Counsel:

Plaintiff: Mr D L Jones
Defendants: No appearance

Solicitors:

Plaintiff: Public Trustee (WA)
Defendants: No appearance

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

Roebuck v Smoje [2000] WASC 312

McKECHNIE J: Florence Beatrice Hinkley was nearly 84 when she died on 28 July 2005. On 13 February 1996 she had attended the Bunbury Courthouse and given instructions for a simple will which was subsequently prepared for her by the Public Trustee and executed on 8 March 1996. The Public Trustee seeks an order that the court pronounce for the force and validity of the will in solemn form.

The issue

The issue is the testamentary capacity of the deceased to make the will in 1996. This arises because of a telephone call to the Public Trustee from one of the deceased's nine children indicating doubts about her testamentary capacity. The Public Trustee has received a number of medical reports which have been put into affidavit form and which form part of the evidence in this case.

The medical evidence

Dr Klimaitis

Dr Klimaitis is a consulting physician who saw the deceased on one occasion in March 1995 when she had come from her home in Narembeen to Perth for surgery. He performed a mini mental state examination and the deceased scored 22 over 30. This is within the dementia range. Dr Klimaitis was a little surprised that she scored as well as she did given her history and observed behaviour during interview. In 1995 he was of opinion that she was 'clearly incompetent at managing her financial affairs'. He concluded that there was little doubt that Mrs Hinkley was suffering from dementia on 8 March 1996 when she made the March 1996 will. He was also of the view that there was reasonable evidence she was suffering from dementia in July 1994, the date of an earlier will. In his opinion, the deceased did not have testamentary capacity at the time of the March 1996 will. I recognise that is a question for me but, nevertheless, his opinion is useful in forming my judgment.

Dr Goldswain

Dr Goldswain is a clinical associate professor and physician at Royal Perth Hospital, Department of Geriatric Medicine. He saw the deceased at the Narembeen Hostel on…

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.

Keep reading for free

Create a free CaseChat account to read The Public Trustee v Hinkley and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2007] WASC 271
Decision Date: 24 OCTOBER 2007

CaseChat Overview and Summary

The Public Trustee of Queensland brought an action against the defendants, seeking a declaration that a will executed by the testatrix, who had suffered from dementia, was valid. The deceased had left her estate to the Public Trustee but had made an oral promise to her son that he would inherit the property. The son and other defendants sought to have the will declared invalid on the basis that the testatrix lacked testamentary capacity. The court had to decide whether the testatrix had the requisite testamentary capacity when she executed the will, and whether her oral promise to her son could be taken into account in assessing her capacity.

The court found that the testatrix had the requisite testamentary capacity to execute the will. The court noted that the testatrix had been diagnosed with dementia, but that this did not necessarily mean that she lacked testamentary capacity. The court found that the testatrix had understood the nature and effect of the will, and had executed it voluntarily and without undue influence. The court also found that the oral promise to her son could not be taken into account in assessing her capacity, as it was not relevant to the question of whether she had the requisite understanding of the will.

As a result, the court found that the will was valid and enforceable. The court rejected the argument that the testatrix lacked testamentary capacity, and found that her oral promise to her son did not affect the validity of the will. The court granted the Public Trustee's application for a declaration that the will was valid and enforceable, and that the defendants were not entitled to any interest in the estate.

The court made a pronouncement for the force and validity of the will, and dismissed the defendants' claims. The court found that the testatrix had the requisite testamentary capacity to execute the will, and that her oral promise to her son did not affect the validity of the will. The court rejected the argument that the will was invalid on the basis of the testatrix's dementia, and found that the will was valid and enforceable. The court made a declaration to this effect, and dismissed the defendants' claims.

Orders

Orders of the court

Pronouncement for force and validity of will

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.