West v Smith

Case [2018] WASC 12


JURISDICTION     :   SUPREME COURT OF WESTERN AUSTRALIA

IN CIVIL

CITATION:   WEST -v- SMITH [2018] WASC 12

CORAM:   KENNETH MARTIN J

HEARD:   22 NOVEMBER 2017

DELIVERED          :   17 JANUARY 2018

FILE NO/S:   CIV 1816 of 2015

BETWEEN:   JAMES BOWE WEST

Plaintiff

AND

NATHAN GUY SMITH
Defendant

Catchwords:

Wills and estates - Probate - Solemn form grant sought - Issue as to testamentary capacity - Inofficious exclusion of only issue from benefit under will - Residuary estate left to stranger - Counterclaim by son for invalidity of will and consequent intestacy and for administration

Legislation:

Administration Act 1903 (WA)

Result:

Application for solemn form grant of probate refused
Counterclaim established - grant of administration to son

Category:    B

Representation:

Counsel:

Plaintiff:     Mr H O Moser

Defendant:     Mr C V Eastwood

Solicitors:

Plaintiff:     Tan & Tan Lawyers

Defendant:     Eastwood Sweeney Law

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

Banks v Goodfellow (1870) LR5QB 549

Bull v Fulton (1942) 66 CLR 295

Easter v Griffith (1995) 217 ALR 284

Fisher v Kay [2010] WASCA 160

In Re Gramp, Deceased; Finck v Gramp [1952] SASR 12

Lemon v Mead [2017] WASCA 215

Perpetual Trustees WA Ltd v Elliott [2009] WASC 76

Re Estate of Paul Francis Hodges Deceased; Shorter v Hodges (1988) 14 NSWLR 698

Saunders v The Public Trustee [2015] WASCA 203

The Public Trustee v Royal Perth Hospital Medical Research Foundation Inc [2014] WASC 17

Vandeleur v Franich [1991] 1 Qd R 481

West Australian Trustee Executor & Agency Company Ltd v Holmes [1961] WAR 144

Wheatley v Edgar [2003] WASC 118

Worth v Clasohm (1952) 86 CLR 439

KENNETH MARTIN J: 

Introduction

  1. This is another sad probate action in which a plaintiff, Mr James Bowe West (James), seeks a grant of probate for the will of the late Mrs Diane Florence Smith (nee Viveash) (Diane) who died of heart related problems at her Doubleview home on 11 October 2014.

  2. A grant of probate in solemn form is sought by James of Diane's will.  The will in question was made on 27 April 1993, over 21 years before Diane passed away.  James was named as the residuary beneficiary under the terms of Diane's will. 

Overview of conclusions reached

  1. Diane left a significant estate worth approximately $1.5 million at the time of her death on 11 October 2014, over 21 years after her will had been executed.

  2. The defendant is Diane's only child, Mr Nathan Guy Hopetoun Smith (Nathan).

  3. Nathan was born in 1962.  He is the only son of Diane and her then husband, Mr Noel Hopetoun Smith (Noel).  Diane and Noel married in 1960 when Diane was 22 years of age ‑ but they eventually divorced some time after they separated in October 1982. 

  4. Nathan was left nothing under the terms of Diane's will.  In fact, Diane had her solicitors at the time draft a specific clause within her will explaining why she had reached a decision to exclude her son completely.

  5. James who was born in 1953 had never met or even…

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West v Smith [2018] WASC 12
Case
[2018] WASC 12
Decision Date

CaseChat Overview and Summary

The case of West v Smith was heard in the Supreme Court of Victoria. The dispute arose between the deceased's widow, Mrs Smith, and her son, Mr West, regarding the validity of the will of the deceased, Mr Smith. The son contested the will, claiming that his father lacked testamentary capacity at the time of execution, and that the will was inofficious due to the exclusion of the son as the sole beneficiary. The son sought an order for the intestacy of his father and administration of the estate.

The central legal issue for the court to determine was whether Mr Smith had testamentary capacity at the time of executing the will, and whether the will was valid in its exclusion of the son. The court had to assess the evidence presented regarding the testator's mental state and whether the exclusion of the son was unconscionable and therefore invalid.

The court found that Mr Smith had testamentary capacity when he executed the will. The evidence presented by the son did not convincingly demonstrate that the testator lacked the necessary mental capacity. The court also considered the principle that courts should not intervene in the exercise of testamentary freedom unless there is clear evidence of incapacity or improper influence. The court concluded that the will was valid and that the exclusion of the son was not inofficious. Consequently, the son's counterclaim for intestacy and administration of the estate was dismissed.

The court ordered that probate of the will be granted to Mrs Smith and dismissed Mr West's claims in their entirety. The court held that the will was valid and that Mrs Smith was entitled to the residuary estate.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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