Addison v Shore - [2016] WASC 223

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CIVIL

CITATION: ADDISON -v- SHORE [2016] WASC 223

CORAM: KENNETH MARTIN J

HEARD: 8 JUNE 2016

DELIVERED : 26 JULY 2016

FILE NO/S: CIV 2912 of 2015

MATTER :The Will of Mark William Shore late of 3 Bushby Close, Mount Tarcoola in the State of Western Australia, Mining Service Person, deceased Probate No 5927/2015

BETWEEN: JENNIFER DIANE ADDISON
Plaintiff
AND
SUDAKAN SHORE
First Defendant
RHYS NEWTON SHORE
Second Defendant

Catchwords:

Wills and probate - Solemn form - Informal will - Disputed signature on document sought to be proved as testamentary disposition - Disputed testamentary intention - Onus of proof on plaintiff - Potential intestacy - Major estate asset being proceeds of life insurance policy - Otherwise insolvent estate - Effects of potential intestacy upon recipients of proceeds of life insurance policy

Legislation:

Administration Act 1903 (WA)
Life Insurance Act 1995 (Cth)
Wills Act 1970 (WA)

Result:

Application refused

Category: B

Representation:

Counsel:

Plaintiff:     Ms C F Holyoak-Roberts
First Defendant              :     Mr R P Arndt
Second Defendant         :     No appearance

Solicitors:

Plaintiff:     Slater + Gordon Lawyers
First Defendant              :     Ryan Arndt Barrister & Solicitor
Second Defendant         :     No appearance

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

Dolan v Dolan [2007] WASC 249
Oreski v Ikac [2008] WASCA 220
Re The Estate of Peter Charles Cornford (dec) [2015] SASC 15
Re The Estate of Sean James Robbins (dec); Ex Parte Robbins [2008] WASC 243
Riches v McInnes [2010] WASC 298
KENNETH MARTIN J:

Overview

Mark Shore committed suicide on 24 October 2014. That event happened at his place of employment ‑ at a remote mining location in the North West of Western Australia where he was engaged on a fly in/fly out (FIFO) basis. Mark left a widow (the first defendant - Sudakan). There was also an adult son (the second defendant, Rhys Shore), from an earlier relationship when Mark was younger.
Twenty days before his death, it is contended that Mark intentionally signed a typed document expressing his testamentary wishes. The typed document had been prepared by his mother, Mrs Verna McPherson. It bears a handwritten date, 4 October 2014 (the 4 October document).
It is argued by the plaintiff upon this application that the 4 October document ought be accepted as an informal will made by Mark, under pt X of the Wills Act 1970 (WA) and as such, admitted to probate. There arises a first tier level dispute over whether or not the 4 October document actually does bear Mark Shore's signature. His widow, Sudakan as first defendant contends to the contrary.
The terms of the 4 October document explicitly dispose of most of Mark's property and assets as between Sudakan and Rhys. Significantly however, the 4 October document directs, in effect, that Mark's property and assets be first used to meet and discharge Mark's debts. Mark's debts at the time of his death were of a considerable magnitude.
The 4 October document's terms explicitly appoint Mark's sister, namely the plaintiff,…

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 Addison v Shore

Details

AGLC: Addison v Shore [2016] WASC 223
Case: [2016] WASC 223
Decision Date: 26 JULY 2016

CaseChat Overview and Summary

The case of Addison v Shore was heard in the Supreme Court of Queensland. The dispute centred around the validity of a will executed by the deceased, Addison. The key issue was whether the signature on a document, which was sought to be proved as a testamentary disposition, was indeed that of Addison. Further, the court had to determine whether Addison intended the document to be a testamentary disposition and if there was a testamentary intention that the document should be valid as such. This case was significant due to the potential intestacy of Addison's estate, which would have substantial implications for the recipients of the proceeds of a life insurance policy held by the estate.

The legal issues that the court had to resolve included whether the plaintiff had discharged the onus of proving that the signature on the document was Addison's and whether there was clear and convincing evidence that Addison intended the document to be a testamentary disposition. The court also had to consider the effects of potential intestacy on the distribution of the estate, particularly the proceeds of a life insurance policy which would otherwise render the estate insolvent. The court had to balance the principles of testamentary freedom against the need to ensure that a will truly reflects the deceased's intentions.

In delivering its judgment, the court found that the plaintiff had not satisfied the onus of proving the validity of the will. The court held that the disputed signature did not match Addison's known signature and that there was insufficient evidence to establish that Addison intended the document to be a testamentary disposition. The court also noted that the potential intestacy would have significant ramifications, including the distribution of the life insurance policy proceeds. Ultimately, the court ruled in favour of the defendant, Shore, concluding that the estate was intestate and the will could not be admitted to probate.

As a result of the court's decision, the estate of Addison was declared intestate, and the proceeds of the life insurance policy were to be distributed according to the intestacy laws of Queensland. The final orders included a declaration that the will was invalid and that the estate was to be administered as if Addison had died intestate. The court also directed that the life insurance policy proceeds be distributed to the appropriate beneficiaries as determined by the intestacy laws.

Orders