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

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.
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

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.
The defendant is Diane's only child, Mr Nathan Guy Hopetoun Smith (Nathan).
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.
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.
James who was born in 1953 had never met or even…

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 West v Smith

Details

AGLC: West v Smith [2018] WASC 12
Case: [2018] WASC 12
Decision Date: 17 JANUARY 2018

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