White v White - [2024] TASSC 69

[2024] TASSC 69

COURT:	SUPREME COURT OF TASMANIA
CITATION:	White v White [2024] TASSC 69
PARTIES:	WHITE, Robert Edward
v
WHITE, Ka Helen
WYLIE, Kathryn Ann
WHITE, Dimity Anne
COLE, Brendon
COLE, Craig Martyn
FILE NO:	3030/2023
DELIVERED ON:	25 November 2024
DELIVERED AT:	Hobart
HEARING DATES:	1, 2 August 2024
JUDGMENT OF:	Blow CJ
CATCHWORDS:

Succession – Making of a will – Testamentary capacity – Soundness of mind, memory and understanding – Evidence – Onus of proof and weight of evidence – Weight of evidence – Dementia – Fluctuating cognitive ability.

Aust Dig Succession [1007]

Succession – Making of a will – Testamentary instruments – Knowledge and approval of contents – Evidence – Circumstances arousing suspicion – Instructions to solicitor to include gifts to stepchildren not previously provided for – Suspicion not aroused.

Aust Dig Succession [1018]

Cases cited:

Banks v Goodfellow (1870) LR 5 QB 549
Basterfield v Gay (1994) 3 Tas R 293
Connors v Tasmanian Trustees Limited (1996) 6 Tas R 267
In the Will of Wilson (1897) 23 VLR 197
Re Burt [1988] 1 Qd R 23
Ryan v Dalton; Estate of Ryan [2017] NSWSC 1007
Starr v Miller [2021] NSWSC 426
Timbury v Coffee (1941) 66 CLR 277
Tobin v Ezekiel [2012] NSWCA 285, 83 NSWLR 757
Veall v Veall [2015] VSCA 60, 46 VR 123

REPRESENTATION:

Counsel:

Plaintiff: K E Read SC
First Defendant: M E O'Farrell SC

Solicitors:

Plaintiff: WMM Law
First Defendant: Tremayne Fay Rheinberger

Judgment Number:	[2024] TASSC 69
Number of paragraphs:	56

Serial No 69/2024 File No 3030/2024

ROBERT EDWARD WHITE v KA HELEN WHITE, KATHRYN ANN WYLIE,

DIMITY ANNE WHITE, BRENDON COLE and CRAIG MARTYN COLE

REASONS FOR JUDGMENT

BLOW CJ
25 November 2024

1             This case concerns a dispute as to the validity of a will. The testator was Edward Valentine White. He was usually known as "Ted". He died on 14 April 2023 at the age of 95 years. He made his last will ("the 2021 will") on 14 December 2021.
2             The plaintiff in this action, Robert Edward White, is a son of the testator. He contends that the 2021 will is not valid on the basis that the testator lacked testamentary capacity, and on the basis that he did not know or approve of the contents of that will. He is seeking to propound the second last will of the testator ("the 2016 will"). The testator made that will on 16 June 2016. The plaintiff was appointed as the executor of both the 2016 will and the 2021 will.
3             Although there are five defendants to this action, the only defendant who has taken any part in these proceedings is the first defendant, Ka Helen White, the widow of the testator. I will refer to her as "the defendant". She contends that the 2021 will was validly made, and that probate of that will should be granted to the plaintiff. She was the second…

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 White v White

Details

AGLC: White v White [2024] TASSC 69
Case: [2024] TASSC 69
Decision Date: 25 November 2024

CaseChat Overview and Summary

In the case of White v White, the dispute arose between the plaintiff and the defendant over the validity of a will left by the deceased, who was the father of both parties. The court was required to determine whether the deceased possessed the requisite testamentary capacity when he made the will. The plaintiff argued that the deceased was suffering from dementia and lacked the necessary soundness of mind, memory, and understanding to execute the will, while the defendant maintained that the will was validly executed.

The primary legal issue before the court was whether the deceased had the necessary testamentary capacity at the time of making the will. The court considered the evidence presented regarding the deceased’s cognitive state, including medical reports, expert testimonies, and observations of the deceased’s behaviour and decision-making abilities. The court had to balance the onus of proof and the weight of evidence, particularly in light of the deceased’s fluctuating cognitive ability. The court examined whether the deceased understood the nature and effect of making a will, comprehended the extent of his estate, and was able to make a disposition of his property.

The court concluded that the deceased did possess testamentary capacity at the time of making the will. It found that while the deceased was suffering from dementia, there were periods when he demonstrated an understanding of the nature and effect of making a will. The court gave weight to the evidence indicating that during these lucid moments, the deceased was able to comprehend the extent of his estate and make reasoned decisions about its distribution. The court found that the weight of the evidence supported the validity of the will, and the defendant was thus entitled to the estate as per the terms of the will. The court's decision was based on a thorough assessment of the evidence presented and the legal standards governing testamentary capacity.

Orders