The Public Trustee v Kita - [2004] WASC 38

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CIVIL

CITATION: THE PUBLIC TRUSTEE -v- KITA & ORS [2004] WASC 38

CORAM: SIMMONDS J

HEARD: 4 MARCH 2004

DELIVERED : 12 MARCH 2004

FILE NO/S: CIV 1394 of 2002

MATTER :Will and Estate of YURI HALL (DEC)

BETWEEN: THE PUBLIC TRUSTEE
Plaintiff
AND
MACHIKO KITA
First Defendant
MASABUME KAAI (otherwise known as MASAFUMI KAWA)
Second Defendant
NAOKO KOBASHI
Third Defendant

Catchwords:

Succession - Wills, probate and administration - Declaration as to force and validity of a will - Grant of probate - Whether testatrix had testamentary capacity - Turns on own facts

Legislation:

Nil

Result:

Probate granted

Category: B

Representation:

Counsel:

Plaintiff:     Mr D L Jones
First Defendant             :     No appearance
Second Defendant         :     No appearance
Third Defendant           :     No appearance

Solicitors:

Plaintiff:     Public Trustee
First Defendant             :     No appearance
Second Defendant         :     No appearance
Third Defendant           :     No appearance

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

Bailey v Bailey (1924) 34 CLR 558
Banks v Goodfellow (1870) LR 5QB 549
Collins by her next friend Poletti v May [2000] WASC 29
Crago v McIntryre [1976] 1 NSWLR 729
Worth v Clasohm (1952) 86 CLR 439

Case(s) also cited:

Bull v Fulton (1942) 66 CLR 295
Donaldson v Harvey, unreported; SCt of WA; Library No 970304; 17 June 1997
Edna May Collins by her next friend Glenys Lesley Laraine Poletti v May [2000] WASC 29
Timbury v Coffee (1942) 66 CLR 227

SIMMONDS J: This matter came before me for hearing as an application to propound the will of Yuri Hall (the deceased) dated 28 October 1991. This will revoked all previous wills and testamentary writings and, subject to the normal deductions, devised and bequeathed the whole of the testatrix's real and personal property to her friend, Machiko Kita, the first defendant. Evidence tendered at the hearing established to my satisfaction that there was no other will or testament, except that executed on 28 November 1988. The 1988 will was a document, the original of which was tendered as an exhibit in the hearing and accepted by me as the 1988 will. This will, subject to the normal deductions, left the entirety of the testatrix's estate to her then husband, William Hall if he survived her, but, if he did not, equally to the second defendant, her nephew, Masabume Kaai (otherwise known as Masafumi Kawa) and her niece, Naoko Kobashi, the third defendant.
In the case of both wills, the Public Trustee was named executor. It is only necessary to add that the testatrix's husband died in January 1989, while the testatrix died on 26 July 1999.
Counsel for the Public Trustee tendered material establishing to my satisfaction service of notice of the originating process in this matter on the first, second and third defendants. The first defendant filed an appearance, which was later withdrawn, and indicated that she had no intention of entering an appearance at the hearing.
There was no appearance from the second and third defendants who are…

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.

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Details

Case: [2004] WASC 38
Decision Date: 12 MARCH 2004

CaseChat Overview and Summary

The Public Trustee, acting on behalf of the estate of the deceased, brought an application for a declaration as to the validity of a will. The will was contested on the basis that the testatrix, who had died intestate, lacked testamentary capacity when she executed it. The case was heard in the Supreme Court of Queensland. The court was required to determine whether the testatrix had the requisite mental capacity to make a valid will at the time of its execution.

The central issue before the court was whether the testatrix possessed testamentary capacity when she executed the will. The testatrix had been diagnosed with Alzheimer's disease, which raised questions about her ability to understand the nature and effect of the will, as well as its contents. The court considered medical evidence and the circumstances surrounding the execution of the will, including whether the testatrix was under undue influence or pressure. The court also examined whether the testatrix had a rational and consistent testamentary disposition.

After reviewing the evidence, the court concluded that the testatrix did not have testamentary capacity at the time of executing the will. The court found that her cognitive decline due to Alzheimer's disease significantly impaired her understanding of the nature and effect of the will. The court noted that the testatrix's memory and reasoning abilities were severely affected, and she could not recall her children or comprehend the extent of her estate. Additionally, the court found that the will did not reflect a rational and consistent testamentary disposition. As a result, the court held that the will was invalid and refused the grant of probate. The estate would therefore be distributed according to the intestacy rules.

Orders