Aspland v Tsakalakis

[2012] WASC 35

Probate and administration – Proof of will in solemn form – Subsequent will made by testator lacking testamentary capacity – Undefended action

Delivered: 6 February 2012

Coram: EM HEENAN J

51 Having regard to the evidence, I am satisfied that there is every reason to conclude that because of deteriorating mental capacity by Mr Rendle which had occurred progressively from the late 1990s and which, by 2002, was apparent from his episodes of confusion, lack of comprehension and difficulties in coping with daily activities, particularly his forgetfulness, demonstrate that Mr Rendle did not have requisite testamentary capacity at the time of the execution of the second will and that there is, therefore, no reason to conclude that it is valid. The presumptions of validity which, otherwise, would arise from a testamentary document, apparently rational on its face, duly executed and witnessed with an attestation clause, have been nullified by the evidence of lack of mental capacity.

54 The cases support the following propositions. The propounder of an earlier will is not under any duty to establish that a later will is invalid or has no effect: Hoare v Reyburn [2010] WASC 301; and Thornhill v Thomas [2010] WASC 297 [15]. The onus of proving a later will rests upon any person seeking to propound it Re Grey Smith (dec) [1978] VR 596 and Thornhill v Thomas. An executor named in a will is under no duty to propound that will if he is not satisfied that it should be proved, but if and when he does propound a will, even a penultimate will, then he is entitled to put forward only evidence that is in its favour Re Levy (dec) (No 2) [1957] VR 662, 665. Similarly, the court is under no duty to satisfy itself by an independent investigation of the validity of some other later will Re Levy (665). As observed by Murray J in Re Grey Smith, the position is that where an executor established circumstances giving rise to a wellfounded suspicion that a later testamentary document does not represent the true will of a capable testator then, provided that notice has been given to all interested parties and none has come forward to propound the later document, the court should ignore the later document. In the present case, not only has no person with any interest sought to prove or claim under the second will, but the evidence establishes circumstances giving rise to a wellfounded suspicion as to lack of testamentary capacity at the time of the later will see Re Grey Smith.

Wiegand v Wiegand

[2012] WASC 32

Wills – Beneficiary refusing to bank cheque from trustee – Whether intention to disclaim the gift

Date Heard: 27 January 2012

Delivered: 27 January 2012

Coram: McKechnie J

1 McKECHNIE J: This action is of long standing, commencing by originating summons in 2005. The relevant history in relation to the matter that has come before me is set out in the affidavit of Kenneth Robert Foggo dated 17 June 2011. I do not propose to read or incorporate any of that into these short reasons other than to say that it is clear that the relationship between Mr Weigand and his brother has broken down and that Mr Weigand, in his comments to me this morning, remains deeply unhappy about aspects of the administration of the estate.

2 The matter I have to resolve, however, is in relation to what is sought by the trustee, Mr Foggo, which essentially is for certain orders which I consider I have power to make them under theTrustees Act 1962 (WA) s 90, and under the general power under O 58 r 29, if it is necessary to do justice in the case.

3 In essence, what the executor seeks is a declaration that Mr Robert Weigand has disclaimed his entitlement under the Will. This morning Mr Weigand has quite clearly stated that he has disclaimed it. He has told me that it is an insignificant amount not worth contending and that the amount can pass to his brother if he wants. In answer to a direct question to me he has repeated these comments. I am quite satisfied that Mr Robert Weigand has disclaimed his entitlement and the consequence is that the estate should now be wound up.

4 I am prepared to make orders in the minute forwarded by Mr Hershowitz, who appears for Mr Foggo, in orders 1, 2, 3, 5 and 6. I am not prepared to make orders in relation to 4 because I do not have sufficient information as to whether such a blanket indemnity should be made and therefore leave that open. If anybody wishes to challenge any aspect of the administration they may, if there is time, bring proceedings to do so. I make no comment on the advisability or otherwise of that but otherwise would make the orders in terms of the summons.