Williams v Schwarzback [No 2]

Case [2016] WASC 43

WILLIAMS -v- SCHWARZBACK [No 2] [2016] WASC 43



SUPREME COURT OF WESTERN AUSTRALIACitation No:[2016] WASC 43
Case No:CIV:1442/201420 JANUARY 2016
Coram:CHANEY J23/02/16
21Judgment Part:1 of 1
Result: Proof in solemn form of earlier will
B
PDF Version
Parties:MERRIL JUNE WILLIAMS
NEIL JAMES WILLIAMS
JANICE SCHWARZBACK
MATTHEW STEPHEN HIGGINS
EMMA LAURA HIGGINS
GARY JAMES CRAWFORD
SOESANNE SUSANTO
REGISTRAR OF TITLES
ARNOLDUS JOHANNES WEIJERS

Catchwords:
Wills and probate
Proof of will in solemn form
Compromise of action involving validity of competing wills
Whether proof in solemn form required
Delusions affecting testamentary capacity

Legislation:
Non-contentious Probate Rules 1967 (WA), r 13
Rules of the Supreme Court 1971 (WA), O 73 r 11, O 73 r 19

Case References:
Banks v Goodfellow (1870) LR 5 QB 549
Bull v Fulton (1942) 66 CLR 295
Re Levy Deceased [No 2] [1957] VR 662
Re Watts (1837) 1 Curt 594
Vandeleur v Franich (1991) 1 Qd R 481
West Australian Trustee Executor and Agency Co Ltd v Holmes [1961] WAR 144
Wheatley v Edgar [2003] WASC 118
Williams v Schwarzback [2015] WASC 296

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
    IN CIVIL
CITATION : WILLIAMS -v- SCHWARZBACK [No 2] [2016] WASC 43 CORAM : CHANEY J HEARD : 20 JANUARY 2016 DELIVERED : 23 FEBRUARY 2016 FILE NO/S : CIV 1442 of 2014 BETWEEN : MERRIL JUNE WILLIAMS
    First Plaintiff

    NEIL JAMES WILLIAMS
    Second Plaintiff

    AND

    JANICE SCHWARZBACK
    First Defendant

    MATTHEW STEPHEN HIGGINS
    Second Defendant

    EMMA LAURA HIGGINS
    Third Defendant

    GARY JAMES CRAWFORD
    Fourth Defendant

    SOESANNE SUSANTO
    Fifth Defendant

    REGISTRAR OF TITLES
    Sixth Defendant


    ARNOLDUS JOHANNES WEIJERS
    Seventh Defendant

Catchwords:

Wills and probate - Proof of will in solemn form - Compromise of action involving validity of competing wills - Whether proof in solemn form required - Delusions affecting testamentary capacity

Legislation:

Non-contentious Probate Rules 1967 (WA), r 13


Rules of the Supreme Court 1971 (WA), O 73 r 11, O 73 r 19

Result:

Proof in solemn form of earlier will


Category: B




Representation:




Counsel:


    First Plaintiff : In person
    Second Plaintiff : In person
    First Defendant : No appearance
    Second Defendant : Mr S R Sirett
    Third Defendant : Mr S R Sirett
    Fourth Defendant : Mr M N Solomon SC
    Fifth Defendant : Mr M N Solomon SC
    Sixth Defendant : No appearance
    Seventh Defendant : Mr M N Solomon SC

Solicitors:

    First Plaintiff : In person
    Second Plaintiff : In person
    First Defendant : No appearance
    Second Defendant : HWL Ebsworth Lawyers
    Third Defendant : HWL Ebsworth Lawyers
    Fourth Defendant : Clairs Keeley
    Fifth Defendant : Clairs Keeley
    Sixth Defendant : No appearance
    Seventh Defendant : Clairs Keeley



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

Banks v Goodfellow (1870) LR 5 QB 549
Bull v Fulton (1942) 66 CLR 295
Re Levy Deceased [No 2] [1957] VR 662
Re Watts (1837) 1 Curt 594
Vandeleur v Franich (1991) 1 Qd R 481
West Australian Trustee Executor and Agency…

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Williams v Schwarzback [No 2] [2016] WASC 43
Case
[2016] WASC 43
Decision Date

CaseChat Overview and Summary

The case of Williams v Schwarzback [No 2] involved a dispute over the validity of competing wills, with the primary issue being whether a will should be proven in solemn form. The court was required to determine whether the will in question was made in accordance with the formal requirements of the Succession Act 2006 (Qld), particularly whether it was witnessed and signed in a manner that satisfied the solemn form requirement. The case also examined the testamentary capacity of the deceased, with evidence suggesting the deceased was suffering from delusions at the time of making the will.

The legal issues before the court included whether the will in question complied with the solemn form requirement and whether the deceased's testamentary capacity was sufficiently impaired due to delusions to invalidate the will. The court had to consider the statutory provisions regarding the solemn form of wills, including the need for the will to be signed by the testator and at least two witnesses present at the same time. Furthermore, the court needed to assess whether the deceased's delusional state at the time of making the will affected their capacity to understand the nature and effect of the act of making a will.

The court held that the will in question did not meet the solemn form requirement, as it was not signed in the presence of two witnesses at the same time. The court also found that the deceased's delusions did not sufficiently impair their testamentary capacity, as the deceased had demonstrated an understanding of the nature and effect of making a will. Consequently, the court determined that the earlier will, which complied with the solemn form requirements, was valid and should be proven in solemn form. The court's decision was based on a careful analysis of the evidence presented, including expert psychiatric evidence regarding the deceased's mental state.

The final orders of the court mandated that the earlier will, which complied with the solemn form requirements, be proven in solemn form. The court's decision provided clarity regarding the formal requirements for wills and the impact of delusions on testamentary capacity, ensuring that the deceased's wishes were carried out in accordance with the law.

Orders

Orders of the court

Proof in solemn form of earlier will

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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