Hawkes v Wilkie [2012] NSWSC 1039

Supreme Court New South Wales

Medium Neutral Citation: Hawkes v Wilkie [2012] NSWSC 1039 Hearing dates: 31 August 2012 Decision date: 06 September 2012 Jurisdiction: Equity Division Before: Ball J Decision: (1)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 to Graham Garwood; (e)$50,000 to the first plaintiff; and (f)after payment of any funeral expenses incurred by the deceased's estate, the remainder of the Trust Sum to be distributed to the first and second defendants equally. (2)Declare that the estate of the deceased has been reduced by the Trust Sum. (3)Order that the costs of the first and second plaintiff be paid from the deceased's estate on an indemnity basis. Catchwords: EVIDENCE - onus of proof - mental capacity to create trust - consideration of presumption of sanity - where elderly person purported to settle money on trust a few days before her death. Cases Cited: Massoud v NRMA Insurance Ltd (1995) 62 NSWLR 657 Owners of Strata Plan No 23007 v Cross [2006] FCA 900; (2006) 153 FCR 398 Szoda v Szoda [2010] NSWSC 804 Category: Principal judgment Parties: Jennifer Hawkes (First Plaintiff) Carole Franz (Second Plaintiff) Vilma Wilkie (First Defendant) Loralee Stotts (Second Defendant) Suzanne Merritt (Third Defendant) John Fisher-Smith (Fourth Defendant) Warren Garwood (Fifth Defendant) Graham Garwood (Sixth Defendant) Representation: P O'Loughlin (Plaintiffs) K Morrissey (First and Second Defendants) C Locke (Fourth Defendant) Warren McKeon Dickson (Plaintiffs) Stockman & Evans (First and Second Defendants) No Representation (Fourth Defendant) File Number(s): 2012/79793