Willis v McKenzie - [2018] VSC 325

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

COMMON LAW DIVISION

TRUSTS, EQUITY & PROBATE LIST

S PRB 2016 20730

ALANA WILLIS	Plaintiff
v
LACHLAN ARTHUR MCKENZIE (as independent representative appointed for the infant beneficiaries ROSE AMBER WILLIS and FRANK GEORGE WILLIS)	Defendant

---

JUDGE:	Lansdowne AsJ
WHERE HELD:	Melbourne
DATE OF HEARING:	5 March 2018
DATE OF JUDGMENT:	18 June 2018
CASE MAY BE CITED AS:	Willis v McKenzie
MEDIUM NEUTRAL CITATION:	[2018] VSC 325

---

WILLS AND ESTATES – Informal will – Will kit utilised but only one witness – Doubt as to testamentary capacity due to diagnosis of schizophrenia and paranoid delusions – Principles to apply in the case of partial unsoundness of mind – Delusions did not result in a disposition that would not otherwise have been made or deprive a person with a good claim of a disposition – Testatrix found to have testamentary capacity and probate of will granted – Wills Act 1997 (Vic), s 9 – Banks v Goodfellow (1870) LR 5 QB 549 and Tipper v Moore and anor (1911) 13 CLR 248 applied – Bull v Fulton (1942) 66 CLR 295 distinguished.

---

APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Ms A S Bartfeld	Hayes Lawyers
For the Defendant	Ms U Stanisich	Moores Legal

TABLE OF CONTENTS

Introduction and summary.............................................................................................................. 1

Background and procedural history............................................................................................... 1

Informal will.................................................................................................................................. 2
Application to the Court.............................................................................................................. 3

Evidence at trial.................................................................................................................................. 5

Relevant legal principles.................................................................................................................. 6

Informal will.................................................................................................................................. 6
Testamentary capacity.................................................................................................................. 8

Discussion......................................................................................................................................... 10

Testamentary capacity................................................................................................................ 10
Dr Cronin’s evidence........................................................................................................ 11
Medical records.................................................................................................................. 13
Conclusions from medical evidence............................................................................... 18
Form and content of the Will........................................................................................... 19
Evidence of witness........................................................................................................... 21
Other indications of competency.................................................................................... 22
Conclusion on testamentary capacity............................................................................. 23

Informal will................................................................................................................................ 23

Conclusion and orders.................................................................................................................... 25

HER HONOUR:

Introduction and summary

This case concerns a will which is informal because the testatrix signed it in the presence of only one witness. The plaintiff, who is the daughter of the testatrix and proposed administrator, commenced this proceeding seeking that the will should be admitted to probate although informal, and bears the onus on that question. After making the application, however, she also became concerned about the testatrix’s testamentary capacity. Ordinarily, the plaintiff as proposed administrator would also have the burden of proving capacity where any question arose, but that sits awkwardly with the fact that if the will is invalid for lack of capacity the plaintiff will take the whole estate by reason of intestacy. If the will is valid, and should be admitted to probate, then the plaintiff is one of three beneficiaries, the other two being her infant children. The defendant is the Court appointed representative for the children.

In the event, it has not become necessary to determine who bears the burden of proof on each issue as the parties now agree that the will should be admitted to probate. For the reasons that I now give, I agree with that joint submission.

Background and procedural history

The plaintiff (Alana

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 Willis v McKenzie

Details

AGLC: Willis v McKenzie [2018] VSC 325
Case: [2018] VSC 325
Decision Date: 18 June 2018

CaseChat Overview and Summary

The case of Willis v McKenzie involved a dispute over the validity of a will executed by the deceased, who was diagnosed with schizophrenia and paranoid delusions. The only witness to the will was present when it was signed, raising questions about the testamentary capacity of the deceased at the time of execution. The matter was brought before the Supreme Court of Victoria, which was tasked with determining whether the deceased had the requisite mental capacity to make a valid will. The court had to consider the principles applicable in cases where the testator is partially unsound in mind and whether the deceased's delusions influenced her testamentary decisions.

The primary legal issue before the court was whether the deceased had testamentary capacity at the time she executed the will. The court needed to evaluate whether the deceased's mental condition, specifically her diagnosis of schizophrenia and paranoid delusions, impaired her ability to understand the nature and effect of her will-making. The court also had to determine whether her delusions influenced the content of the will in a way that would invalidate it. The relevant legislation and precedents, including the Wills Act 1997 (Vic), s 9, as well as the cases of Banks v Goodfellow and Tipper v Moore and anor, provided the framework for the court's analysis.

The Supreme Court of Victoria concluded that the deceased did have testamentary capacity at the time she executed the will. The court found that while the deceased suffered from schizophrenia and paranoid delusions, these conditions did not impair her understanding of the nature and effect of her will-making. Furthermore, the court held that her delusions did not influence the content of the will in a way that would render it invalid. The court distinguished the case of Bull v Fulton, where the testator's delusions did result in a disposition that would not otherwise have been made. As a result, the court found that the will was valid and granted probate.

The final orders of the court included the grant of probate for the will of the deceased, recognising her testamentary capacity despite her diagnosed mental conditions. The court's decision ensured that the deceased's wishes, as expressed in her will, were legally upheld and that her estate was distributed accordingly. The court's application of relevant legislation and case law provided clarity on the principles to apply in cases involving partial unsoundness of mind and testamentary capacity.

Orders