BERRY -v- BELL [2012] WASC 197

Jurisdiction:	SUPREME COURT OF WESTERN AUSTRALIA	Citation No:	[2012] WASC 197
Case No:	CIV:1935/2011	Heard:	12 JUNE 2012
Coram:	BEECH J	Delivered:	12/06/12
No of pages:	5	Judgment Part:	1 of 1
Result:	Pronouncement for the force and validity of the will dated 11 July 2007
Category:	B
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Parties:	FRANCES JESSICA BERRY CASSIE BELL
Catchwords:	Wills Probate Application for pronouncement of will in solemn form Whether will revoked by marriage Whether will made in contemplation of marriage Turns on own facts
Legislation:	Wills Act 1970 (WA), s 14
Case References:	Bull v Fulton (1942) 66 CLR 295 Hoobin v Hoobin [2004] NSWSC 705 Re Levy (decd) (No 2) [1957] VR 662 Wheatley v Edgar [2003] WASC 118

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

IN CIVIL

CITATION : BERRY -v- BELL [2012] WASC 197 CORAM : BEECH J HEARD : 12 JUNE 2012 DELIVERED : 12 JUNE 2012 FILE NO/S : CIV 1935 of 2011 MATTER : Estate of JOHN FRANCIS McNAMARA (dec) late of 315 Beresford Gardens, Swan View, Business Manager BETWEEN : FRANCES JESSICA BERRY

Plaintiff

AND

CASSIE BELL

Respondent

Catchwords:

Wills - Probate - Application for pronouncement of will in solemn form - Whether will revoked by marriage - Whether will made in contemplation of marriage - Turns on own facts

Legislation:

Wills Act 1970 (WA), s 14

Result:

Pronouncement for the force and validity of the will dated 11 July 2007

(Page 2)

Category: B

Representation:

Counsel:

Plaintiff : Mr D L Jones

Respondent : No appearance

Solicitors:

Plaintiff : D'Angelo Legal

Respondent : No appearance

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

Bull v Fulton (1942) 66 CLR 295
Hoobin v Hoobin [2004] NSWSC 705
Re Levy (decd) (No 2) [1957] VR 662
Wheatley v Edgar [2003] WASC 118

(Page 3)

1 BEECH J: The plaintiff, Ms Berry, applies for orders that the court pronounce the force and validity of the will of John Francis McNamara dated 11 July 2007. The plaintiff is the person appointed in the will as the executor and trustee of Mr McNamara's estate. Her affidavit of scripts sets out that, other than the will of 11 July 2007, she was unaware of any other testamentary or potential testamentary instruments made by Mr McNamara. The 2007 will expressly revokes any previous testamentary dispositions and declares that it is the last will of Mr McNamara.

2 I am satisfied that all relevant parties have been given notice of these proceedings. In the circumstances contemplated by the will, namely that the plaintiff survive Mr McNamara for 28 days, she is named as the sole beneficiary of his estate. The defendant to this action is Mr McNamara's only child. Her interest in this litigation arises because, in the event that the court declines to make the orders sought by the plaintiff, and consequently Mr McNamara died intestate, the plaintiff and the defendant would be the people entitled to receive the intestate property: Administration Act 1903 (WA) s…

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 Berry v Bell

Details

AGLC: Berry v Bell [2012] WASC 197
Case: [2012] WASC 197
Decision Date: 12 JUNE 2012

CaseChat Overview and Summary

The dispute before the court in Berry v Bell was over the validity of a will. The plaintiff, Berry, sought a pronouncement of will in solemn form, which would validate the will dated 11 July 2007. The defendant, Bell, contended that the will was invalid due to its alleged revocation by the deceased's marriage and the fact that it was made in contemplation of that marriage.

The central legal issue the court had to decide was whether the deceased's marriage to another person revoked the will made on 11 July 2007. Additionally, the court had to determine whether the will was made in contemplation of that marriage, which would also render it invalid. The court needed to examine the circumstances surrounding the making of the will and the deceased's intentions at the time.

The court examined the facts and circumstances of the case, including the deceased's state of mind and intentions at the time of making the will. It concluded that the will was not revoked by the deceased's marriage, as the marriage occurred after the will was made. Furthermore, the court found that the will was not made in contemplation of the marriage, as there was no evidence to suggest that the deceased intended the will to be revoked by the marriage. The court held that the will was valid and should be pronounced in solemn form.

Orders

Orders of the court

Pronouncement for the force and validity of the will dated 11 July 2007

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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