The Public Trustee v OVERGAARD
[2012] WASC 204
•15 JUNE 2012
THE PUBLIC TRUSTEE -v- OVERGAARD [2012] WASC 204
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2012] WASC 204 | |
| 15/06/2012 | |||
| Case No: | CIV:1185/2009 | 13 JUNE 2012 | |
| Coram: | BEECH J | 13/06/12 | |
| 6 | Judgment Part: | 1 of 1 | |
| Result: | Probate granted of will dated 23 January 2004 | ||
| B | |||
| PDF Version |
| Parties: | THE PUBLIC TRUSTEE SVEN JORGEN OVERGAARD JOSEPH LINDBERG BENJAMIN LINDBERG ASSOCIATION FOR THE BLIND OF WESTERN AUSTRALIA INC GUIDE DOG ASSOCIATION OF WESTERN AUSTRALIA (INC) ARTHRITIS FOUNDATION OF WESTERN AUSTRALIA INC MUSCULAR DISTROPHY ASSOCIATION OF WESTERN AUSTRALIA (INC) NATIONAL HEART FOUNDATION OF AUSTRALIA (WESTERN AUSTRALIA DIVISION) INC WESTERN AUSTRALIA OSTOMY ASSOCIATION (INC) FEDERATION OF AUSTRALIA POLICE AND COMMUNITY YOUTH CENTRES (INC) THE BRAIN FOUNDATION CANCER FOUNDATION WESTERN AUSTRALIA INC ST JOHN AMBULANCE AUSTRALIA (WESTERN AUSTRALIA) INC ROYAL FLYING DOCTOR SERVICE OF AUSTRALIA (WESTERN OPERATIONS) INC SILVER CHAIN FOUNDATION |
Catchwords: | Wills Probate |
Legislation: | Nil |
Case References: | Aspland v Tsakalakis [2012] WASC 35 Hoare v Reyburn [2010] WASC 301 Thornhill v Thomas [2010] WASC 297 |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
- IN CIVIL
- Plaintiff
AND
SVEN JORGEN OVERGAARD
First Defendant
JOSEPH LINDBERG
Second Defendant
BENJAMIN LINDBERG
Third Defendant
ASSOCIATION FOR THE BLIND OF WESTERN AUSTRALIA INC
Fourth Defendant
GUIDE DOG ASSOCIATION OF WESTERN AUSTRALIA (INC)
Fifth Defendant
- ARTHRITIS FOUNDATION OF WESTERN AUSTRALIA INC
Sixth Defendant
MUSCULAR DISTROPHY ASSOCIATION OF WESTERN AUSTRALIA (INC)
Seventh Defendant
NATIONAL HEART FOUNDATION OF AUSTRALIA (WESTERN AUSTRALIA DIVISION) INC
Eighth Defendant
WESTERN AUSTRALIA OSTOMY ASSOCIATION (INC)
Ninth Defendant
FEDERATION OF AUSTRALIA POLICE AND COMMUNITY YOUTH CENTRES (INC)
Tenth Defendant
THE BRAIN FOUNDATION
Eleventh Defendant
CANCER FOUNDATION WESTERN AUSTRALIA INC
Twelfth Defendant
ST JOHN AMBULANCE AUSTRALIA (WESTERN AUSTRALIA) INC
Thirteenth Defendant
ROYAL FLYING DOCTOR SERVICE OF AUSTRALIA (WESTERN OPERATIONS) INC
Fourteenth Defendant
SILVER CHAIN FOUNDATION
Fifteenth Defendant
(Page 3)
Catchwords:
Wills - Probate
Legislation:
Nil
Result:
Probate granted of will dated 23 January 2004
Category: B
Representation:
Counsel:
Plaintiff : Mr D L Jones
First Defendant : No appearance
Second Defendant : No appearance
Third Defendant : No appearance
Fourth Defendant : No appearance
Fifth Defendant : No appearance
Sixth Defendant : No appearance
Seventh Defendant : No appearance
Eighth Defendant : No appearance
Ninth Defendant : No appearance
Tenth Defendant : No appearance
Eleventh Defendant : No appearance
Twelfth Defendant : No appearance
Thirteenth Defendant : No appearance
Fourteenth Defendant : No appearance
Fifteenth Defendant : No appearance
Solicitors:
Plaintiff : Public Trustee (WA)
First Defendant : No appearance
Second Defendant : No appearance
Third Defendant : No appearance
Fourth Defendant : No appearance
Fifth Defendant : No appearance
- Sixth Defendant : No appearance
Seventh Defendant : No appearance
Eighth Defendant : No appearance
Ninth Defendant : No appearance
Tenth Defendant : No appearance
Eleventh Defendant : No appearance
Twelfth Defendant : No appearance
Thirteenth Defendant : No appearance
Fourteenth Defendant : No appearance
Fifteenth Defendant : No appearance
Case(s) referred to in judgment(s):
Aspland v Tsakalakis [2012] WASC 35
Hoare v Reyburn [2010] WASC 301
Thornhill v Thomas [2010] WASC 297
(Page 5)
- BEECH J:
(These reasons are an edited version of the reasons delivered orally).
1 This is an action seeking a grant of probate in solemn form of the will (the Will), dated 23 January 2004 of Mr Gustaf Ringstrom (the Testator) who died on 12 February 2007.
2 I am satisfied by the evidence, including the medical opinion of Dr Levi, that in January 2004, the Testator had the capacity to understand his Will and to make rational decisions.
3 I am satisfied that the Will was duly executed. I refer to the affidavits of David Geoffrey Hart and Norman John Hart.
4 By the Will, the Testator gave 10,000 shares in the capital of Wesfarmers Ltd to the first defendant, Mr Sven Jorgen Overgaard. The Will then divided the residuary estate into a number of one hundredth shares which were left in stipulated amounts to 14 named legatees. Apart from the second and third defendants, the rest of the residuary legatees are charitable or other not-for-profit associations.
5 By the Will, the Testator appointed the first defendant as his executor. By an authority dated 2 February 2012, the first defendant has authorised and requested The Public Trustee to apply to the court under s 12(2) of the Public Trustee Act(1941) (WA) for an order to administer the estate of the Testator.
6 The reason that probate was not granted in common form in relation to the Will is the existence of a later testamentary instrument, namely a codicil (the Codicil), dated 9 October 2005. By the Codicil, the Testator deleted the gift to the first defendant.
7 The Public Trustee does not propound the Codicil.
8 The relevant principles in circumstances of this kind have been explained by EM Heenan J in a series of decisions: see Hoare v Reyburn [2010] WASC 301; Thornhill v Thomas [2010] WASC 297; and Aspland v Tsakalakis [2012] WASC 35 [54]. In summary, the principles are as follows. The propounder of an earlier will is not under any duty to establish that a later will is invalid. The onus of proving a later will rests on any person who seeks to propound it. The court is not under a duty to satisfy itself, by independent investigation, of the validity of some later will. If an executor or other propounder establishes circumstances giving
(Page 6)
- rise to a well founded suspicion that a later testamentary document does not represent the true will of a capable testator then, provided notice has been given to all interested parties and none has come forward to propound the later document, the court should ignore the later document.
9 In this case, notice of the proceedings has been given to the second to fifthteenth defendants, the other beneficiaries of the Will. If the gift to the first defendant is deleted by operation of the Codicil, the share of the second to fifteenth defendants would be commensurately increased.
10 None of the defendants has entered an appearance. Applying the principles I have just outlined, in circumstances where no party propounds the Codicil, and where there is ample evidence to sustain a suspicion that it does not represent the will or testamentary act of a capable testator, the Codicil can be put to one side.
11 In any event, the evidence of Dr Levi and Mr Scurria satisfies me that by October 2005, the Testator's mental condition had deteriorated to the extent that he did not have the capacity to make a rational decision about the disposition of his property.
12 For these reasons, I would pronounce for the force and validity of the Will. There should be a grant of probate to The Public Trustee of the Will in solemn form.
0
3
1