Thomas v Nash

Case [2010] SASC 153

SUPREME COURT OF SOUTH AUSTRALIA

(Civil)

THOMAS & ANOR v NASH

[2010] SASC 153

Judgment of The Honourable Chief Justice Doyle

25 May 2010

SUCCESSION - WILLS, PROBATE AND ADMINISTRATION - THE MAKING OF A WILL - TESTAMENTARY CAPACITY - SOUNDNESS OF MIND, MEMORY AND UNDERSTANDING - GENERALLY

Plaintiffs sought grant of probate in solemn form - whether testator had testamentary capacity - whether testator knew and approved contents of will.

HELD: evidence established that testator had testamentary capacity - testator understood nature and effect of making a will - contents of will did not give rise to doubt about testator's capacity.

SUCCESSION - WILLS, PROBATE AND ADMINISTRATION - THE MAKING OF A WILL - TESTAMENTARY INSTRUMENTS - UNDUE INFLUENCE - GENERALLY

SUCCESSION - WILLS, PROBATE AND ADMINISTRATION - THE MAKING OF A WILL - TESTAMENTARY INSTRUMENTS - UNDUE INFLUENCE - CIRCUMSTANCES AROUSING SUSPICION

SUCCESSION - WILLS, PROBATE AND ADMINISTRATION - THE MAKING OF A WILL - TESTAMENTARY INSTRUMENTS - UNDUE INFLUENCE - EVIDENCE

Whether plaintiffs exercised undue influence over the testator at the time will was executed - whether will made in suspicious circumstances.

HELD: court must be satisfied that undue influence was in fact exerted - distinction between legitimate influence, persuasion and pressure, and persuasion, pressure or influence that amounts to coercion depriving testator of "free agency" - evidence did not support conclusion that plaintiffs exercised such influence and persuasion over testator as to deprive her of a free choice.

COMMUNICATIONS LAW - INTERCEPTION OF COMMUNICATIONS - DEALING IN INFORMATION - AS EVIDENCE

EVIDENCE - ADMISSIBILITY AND RELEVANCY - IN GENERAL - EVIDENCE UNLAWFULLY OR IRREGULARLY OBTAINED

EVIDENCE - MECHANICAL RECORDS

Whether certain conversations recorded by the defendant without consent of other participants admissible - meaning of expression "lawful interests" in s 7 of Listening and Surveillance Devices Act 1972 (SA) - whether court has discretion similar to Bunning v Cross discretion to exclude evidence.

HELD: meaning of "lawful interests" in s 7 of Listening and Surveillance Devices Act 1972 (SA) best left to be applied case by case - desire to gain advantage in civil proceedings not usually in "lawful interests" - s 7 did not operate here - defendant prohibited by s 5 from communicating recorded information - s 5 applies to communication or publication to a court - tender of evidence would give rise to an offence - all recordings except one on a standard telephone message recording machine inadmissible.

Supreme Court Civil Rules 2006 (SA) r 209; Listening and Surveillance Devices Act 1972 (SA) s 3, s 4, s 5(1), s 5(2), s 7(1), s 7(3); Telecommunications (Interception and Access) Act 1979 (Cth); Wills Act 1936 (SA), referred to.
Banks v Goodfellow (1870) LR 5 QB 549; Bailey v Bailey (1924) 34 CLR 558; Timbury v Coffee (1941) 66 CLR 277; Worth v Clasohm (1952) 86 CLR 439; Boreham v Prince Henry Hospital (1955) 29 ALJ 179; Wingrove v Wingrove (1885) LR 11 PD 81; Winter v Crichton; Estate of…

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Thomas v Nash [2010] SASC 153
Case
[2010] SASC 153
Decision Date

CaseChat Overview and Summary

In the matter of Thomas v Nash, the plaintiffs, John Nash and Peter Nash, sought a grant of probate in solemn form for their mother's will, which had been executed by their mother, Violet Frances Nash, on 27 September 2005. The dispute arose from the contention that the will did not validly represent the deceased's wishes due to alleged lack of testamentary capacity and undue influence by the plaintiffs, Mrs Nash's children, against her other child, Mrs Thomas. The matter was heard in the Supreme Court of South Australia.

The court was tasked with determining two primary legal issues: whether Violet Nash had the requisite testamentary capacity to execute the will, and whether the will was executed under undue influence. Testamentary capacity requires the testator to have a sound mind, memory, and understanding at the time of making the will. The court also needed to examine if there was any undue influence by the plaintiffs, which would invalidate the will if proven. The court had to assess the evidence regarding Mrs Nash's state of mind and the circumstances surrounding the execution of the will.

The court found that there was no evidence to support the claim that Mrs Nash lacked testamentary capacity at the time she executed the will. It was noted that she had consulted medical professionals and had a clear understanding of the implications of the will. Additionally, the court rejected the argument of undue influence, stating that the plaintiffs did not exercise such influence or persuasion as to deprive their mother of free choice. The court concluded that the will was validly made and pronounced it as the force and validity of the last will and testament of Violet Frances Nash.

The court ordered that the will be granted probate in solemn form. The matter of costs was to be heard separately.

Orders

Orders of the court

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Background

Background to the litigation

Mrs Nash had three children: John Nash, Peter Nash and Mrs Thomas. At the date of her death on 26 October 2006, their respective ages were 59 years, 54 years and 49 years. Mrs Nash was living with Mrs Thomas and Mr Thomas at the time of her death, and had been since late June or early July 2005. Before that Mrs Nash lived in separate accommodation at Mr Peter Nash’s residence. She had lived there since about 1991. She consulted Dr Rachootin, a general practitioner, from 1993 onwards. Mrs Nash from time to time consulted Mr Fisher, a solicitor. At the time that Mrs Nash executed the will Mr Fisher suggested that she obtain a certificate verifying that she had capacity to execute a will. She saw Dr Rachootin for this purpose. Dr Rachootin referred her to the Repatriation General Hospital to obtain such a certificate, where she saw Dr Bulling, the other medical practitioner to whom I have referred.Background I will now outline the events leading up to and following the execution of the will. These events are either common ground, or established by documents. I make findings as follows, except when I indicate that I am merely repeating evidence given to me. Mrs Nash was born on 8 January 1923. She had three children. In the mid 1980’s, after separating from her husband, she moved to Perth. Mrs Thomas was living in Perth with her former husband. Mrs Thomas’ first marriage broke down. Mr Thomas, with whom Mrs Thomas had previously been friendly, came from Adelaide to visit Mrs Nash in Perth. He was a long term friend of hers. His marriage had broken down. Mr Thomas and Mrs Nash had been friends for a number of years because of a mutual interest in the teaching of children. The plaintiffs rekindled their friendship. They returned to Adelaide in 1989, and married in 1991. Around the time that the plaintiffs returned to Adelaide, Mrs Thomas and Mrs Nash purchased a property as tenants in common. The plaintiffs moved into that property. Mrs Nash came to live in Adelaide in late 1991. Just prior to her returning to Adelaide, Mr Nash, who was operating a business, was given the opportunity to purchase the premises on which he conducted the business. Mr Nash raised with Mrs Nash the prospect of her assisting with the purchase of the premises. She paid $150,000 on behalf of Mr Nash to the vendor of the premises. The agreement pursuant to which the advance was made is not in evidence. I will return to the agreement between Mr Nash and Mrs Nash later in these reasons. The payment by Mrs Nash was linked to Mrs Nash living in accommodation on Mr Nash’s property. Mr Nash said in evidence that Mrs Nash knew she would have to wait five years before she could ask for her money to be repaid. On her return to Adelaide, Mrs Nash stayed with the plaintiffs for a short time, but soon moved into a unit on Mr Nash’s property. She started seeing Dr Rachootin in 1993. Although she had experienced heart palpitations and abdominal pain, her physical health was quite good. In 1993 Dr Rachootin noted that Mrs Nash was anxious and possibly suffered from depression. She thought that this was a reaction to events in Mrs Nash’s life, such as deteriorating vision. Mrs Nash declined the use of antidepressants. Her condition improved after she adopted some practical suggestions made by Dr Rachootin.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

When I stand back and look at what is left, it does not support a conclusion that, having brought Mrs Nash to live with them, Mr and Mrs Thomas exercised such influence and persuasion as to deprive her of a free choice. I reject Mr Nash’s submission. It is based largely on surmise and suspicion, attributable to his mistrust of Mr Thomas and Mrs Thomas.Conclusion I am satisfied that the will was validly made. The Court pronounces for the force and validity of the last will and testament of Violet Frances Nash late of 9 Mayfair Avenue Somerton Park 5044 in the State of South Australia the above named deceased being the document dated the 27th day of September 2005 referred to as exhibit A in the affidavit of Peter Grant Fisher sworn on 21 March 2007 filed in the probate file No. 007-564 and propounded on behalf of the plaintiffs. I will hear the parties on the question of the costs of the action.

Ratio Decidendi

Legal Principle Established

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