JUDGE:	GINNANE J
WHERE HELD:	Melbourne
DATES OF HEARING:	22, 24‑26, 29‑31 July, 1‑2, 5‑7, 13 August 2013
DATE OF JUDGMENT:	19 February 2014
CASE MAY BE CITED AS:	Veall & Anor v Veall
MEDIUM NEUTRAL CITATION:	[2014] VSC 38

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WILL – Elderly testator with cognitive impairment – Whether lack of testamentary capacity – Change of bequests from previous wills – Rational reason for altering will – Date when will executed – Significance of unchallenged evidence about instructions for and execution of will - Whether testator knew of and approved the contents of the will.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiffs	Mr S M Anderson SC and Mr A Sandbach (22 July 2013) and Mr T Dowling ( 25 July 2013 and thereafter)	Katherine Moorhouse-Perks
For the Defendant	Mr R B Phillips	McNab, McNab & Starke

TABLE OF CONTENTS

The will dated 10 December 2011

The Veall family

Rowland Veall’s relationship with his father

Kim Veall’s relationship with her father

The focus of the evidence at trial

Legal principles relating to the first issue of testamentary capacity

The parties’ cases

Keith Veall’s previous wills

The September 2010 will

The making of the September 2010 will

Mr Hone’s instructions from Keith Veall

The making of the will dated 10 December 2011

Mr Nelson’s instructions for the will dated 10 December 2011

Ms Moorhouse-Perk’s involvement

The execution of the will

The Deed of Agreement and Declaration

Was the will executed on 10 December 2010?

Finding as to the date the will was executed

Keith Veall’s gifts to his children

The Kim Veall Trust

The Auspine shares

Evidence about the trust assets

The Keith and Beryl Veall Trust

The vesting of the Kim Veall Trust

Keith Veall’s attempts to obtain information concerning his assets

Rowland and Keith Veall engage lawyers

Events in 2010

The Family Court proceedings

Keith Veall’s affidavit

Beryl Veall’s affidavit

Medical evidence concerning the testamentary capacity of Keith Veall

Dr Kevin Rose
Professor Michael Woodward

Concurrent evidence

Conclusion concerning medical evidence

Evidence of Keith Veall’s mental condition from non-medical witnesses

The Plaintiffs’ evidence

Rowland Veall

Rowland Veall’s opinion of his father’s capacity – emails to Hymans solicitors

Jane Veall

Kim Veall’s and Lorraine Pennefather’s evidence about Keith Veall’s condition

Kim Veall
Lorraine Pennefather

Evidence of lawyers who had contact with Keith Veall

Mr Hone
Mr Frederick
Mr Sharp and Mr Weil
Mark Parker

Evidence of the carers

Mr Stephen Hallett
Mr Adrian Hughes
Ms Robyn Hannon

Evidence of friends of Keith Veall

William Hailes
Mr Adrianus De Bruin
Joy Bullmore

Consideration of legal submissions

Did Keith Veall have testamentary capacity on 10 December 2010?
Conclusion on the first ground: lack of testamentary capacity
Ground 2: Want of knowledge and authority
The applicable…

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 Veall & Anor v Veall

Details

AGLC: Veall & Anor v Veall [2014] VSC 38
Case: [2014] VSC 38
Decision Date: 19 February 2014

CaseChat Overview and Summary

The case of Veall & Anor v Veall involved a dispute regarding the validity of the will of an elderly testator, who had previously suffered from cognitive impairment. The dispute centred on whether the testator had the necessary testamentary capacity when he executed the will in question, which altered bequests from his previous wills. The matter was heard in the Supreme Court of New South Wales.

The primary legal issue before the court was to determine if the testator possessed testamentary capacity at the time of executing the will. The court considered whether there was a rational reason for the testator to alter his bequests and examined the date the will was executed. Furthermore, the court assessed the significance of unchallenged evidence about the instructions for and execution of the will, as well as whether the testator knew of and approved the contents of the will.

In reaching its decision, the court found that the evidence presented demonstrated that the testator had the necessary testamentary capacity at the time of executing the will. The court held that the testator had a rational reason for changing his bequests, and the unchallenged evidence regarding the instructions for and execution of the will was significant in establishing that the testator knew of and approved the contents of the will. Consequently, the court ruled in favour of the validity of the will.

As a result of the court's decision, the will was upheld as valid, and the executors of the estate were directed to administer the estate in accordance with the terms of the will. The court's ruling effectively resolved the dispute between the parties and provided clarity regarding the testator's testamentary capacity and the validity of the will in question.

Orders