Hawkes v Wilkie [2012] NSWSC 1039

Hawkes v Wilkie [2012] NSWSC 1039

The plaintiffs were entitled to rely on the presumption of sanity and did not seek a declaration specifically concerning mental capacity. The evidence did not establish that the deceased lacked capacity at the time she gave the instructions: her words were responsive, sensible and consistent, the plaintiffs' evidence was accepted, and the surrounding evidence of frailty and occasional confusion did not show that she was confused when she created the trust. The deceased understood the effect of her instructions, so the trust declaration should be made.

Jurisdiction
Australia
Judgment Date
06 September 2012
Procedural Posture
Equity Proceedings Seeking Declarations Concerning a Trust Said to Have Been Created by the Deceased / Principal Judgment After Hearing
Outcome
Declarations made for the plaintiffs; costs of the first and second plaintiffs ordered from the deceased's estate on an indemnity basis.
Legal Topics
['mental Capacity to Create Trust' 'presumption of Sanity' 'onus of Proof for Declaratory Relief' 'estate Distribution']
['equity' 'trusts' 'evidence' 'succession'] ['mental Capacity to Create Trust' 'presumption of Sanity' 'onus of Proof for Declaratory Relief' 'estate Distribution']

Case Brief

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Procedural Posture

Equity Proceedings Seeking Declarations Concerning a Trust Said to Have Been Created by the Deceased / Principal Judgment After Hearing

Legal Issues

  1. 1 ['Whether the deceased had the requisite mental capacity to create the trust that she purported to create.' "Who bore the onus of proof on the issue of the deceased's mental capacity."]

Ratio Decidendi

The plaintiffs were entitled to rely on the presumption of sanity and did not seek a declaration specifically concerning mental capacity. The evidence did not establish that the deceased lacked capacity at the time she gave the instructions: her words were responsive, sensible and consistent, the plaintiffs' evidence was accepted, and the surrounding evidence of frailty and occasional confusion did not show that she was confused when she created the trust. The deceased understood the effect of her instructions, so the trust declaration should be made.

Court Disposition

Declarations made for the plaintiffs; costs of the first and second plaintiffs ordered from the deceased's estate on an indemnity basis.

Orders

  • ["Declare that on 24 January 2011, Florence Elsie Smith (the deceased) settled upon the first plaintiff the sum of $300,000 (the Trust Sum) to be held by her upon trust to distribute the Trust Sum as follows: (a) $50,000 to Suzanne Merritt; (b) $50,000 to John Fisher-Smith; (c) $50,000 to Warren Garwood; (d) $50,000...