Thornhill v Thomas - [2010] WASC 297

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CIVIL

CITATION: THORNHILL -v- THOMAS [2010] WASC 297

CORAM: EM HEENAN J

HEARD: 12 OCTOBER 2010

DELIVERED : 12 OCTOBER 2010

PUBLISHED : 27 OCTOBER 2010

FILE NO/S: CIV 1144 of 2009

MATTER :The Will of Maria Monika Hillbrick late of Annie Bryson McKeown Lodge, Angove Road, Albany, Home Duties, Deceased

BETWEEN: MURRAY NOEL THORNHILL
First Plaintiff
SIMON ELWYN CREEK
Second Plaintiff
AND
IRIS THOMAS
Defendant

Catchwords:

Probate - Proof of will in solemn form - Subsequent will made by deceased during a period of incapacity - Grant of probate in solemn form of earlier will

Legislation:

Administration Act 1903 (WA), s 7
Wills Act 1970 (WA)

Result:

Order for grant of probate of will of the deceased dated 2 April 2004

Category: B

Representation:

Counsel:

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

Solicitors:

First Plaintiff                :     Hudson Henning & Goodman
Second Plaintiff            :     Hudson Henning & Goodman
Defendant:     No appearance

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

In Re Levy (No 2) [1957] VR 662
In the Estate of the Late Leo Rene Raig [2006] ACTSC 96
Re Grey Smith (decd) [1978] VR 596
Wheatley v Edgar [2003] WASC 118

EM HEENAN J: This is an action seeking a grant of probate in solemn form of law of the will dated 2 April 2004 of Mrs Maria Monika Hillbrick (dec), who died on 12 September 2007.
The will of the deceased dated 2 April 2004 appears to have been regularly made and executed and has been prepared by the Albany Community Legal Centre in conventional form. By that document the deceased appointed each of the persons practising as partners of the firm of solicitors of Hudson Henning & Goodman of Albany to be her executors and trustees.
After directing the payment of just debts, funeral and testamentary expenses provided for a series of personal bequests for small items of her jewellery and other personal property to friends and relatives, some of whom were living in Germany, where the deceased had been born. Her major asset was an entitlement to a deposit at the retirement village where she had been living and Mrs Hillbrick provided that two‑thirds of that entitlement should be paid to a named beneficiary and that the residue of her estate should then be distributed among four named beneficiaries, including the person to whom two‑thirds of the retirement home deposit had been left. The will included a reference to the fact that the deceased had omitted any provision for her daughter from whom the deceased had then been alienated for 25 years.
The plaintiffs in this action were the persons who are the partners in the firm of solicitors, Hudson Henning & Goodman, at the date of death. The affidavit in support of the application for probate includes a statement of assets and liabilities showing that the deceased left movable property situated in the State of Western Australia to…

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.

Continue reading Thornhill v Thomas

Details

AGLC: Thornhill v Thomas [2010] WASC 297
Case: [2010] WASC 297
Decision Date: 27 OCTOBER 2010

CaseChat Overview and Summary

The matter of Thornhill versus Thomas was heard in the Supreme Court of New South Wales. The dispute centred around the validity and admissibility of a will executed in solemn form. The deceased, who had previously executed a will in solemn form, executed a second will during a period of incapacity. The executor of the earlier will sought to have the earlier will admitted to probate in solemn form, while the second will was contested on the grounds of the deceased's incapacity.

The central legal issue was whether the second will could be admitted to probate, considering the deceased's incapacity at the time of its execution. The court needed to determine if the second will was validly executed and if it could override the earlier will made in solemn form. Another consideration was whether the earlier will could be admitted to probate in solemn form despite the existence of the second will.

The court determined that the second will was not validly executed due to the deceased's incapacity at the time. It found that the second will did not override the earlier will made in solemn form. The court granted the application for the earlier will to be admitted to probate in solemn form. The court's decision was based on the principle that a will executed during a period of incapacity is invalid, and the earlier will remained valid and enforceable. The court emphasised the importance of ensuring that a will is executed by a mentally competent individual to avoid any potential disputes over its validity.

As a result of the court's decision, the earlier will was admitted to probate in solemn form, and the second will was deemed invalid. The executor of the earlier will was granted authority to administer the estate in accordance with the provisions of that will. The court's ruling clarified the legal position regarding the validity of wills executed during periods of incapacity and reinforced the importance of ensuring that a will is executed by a mentally competent individual.

Orders