Berry v Bell
[2012] WASC 197
•12 JUNE 2012
BERRY -v- BELL [2012] WASC 197
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2012] WASC 197 | |
| Case No: | CIV:1935/2011 | 12 JUNE 2012 | |
| Coram: | BEECH J | 12/06/12 | |
| 5 | Judgment Part: | 1 of 1 | |
| Result: | Pronouncement for the force and validity of the will dated 11 July 2007 | ||
| B | |||
| PDF Version |
| 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
- 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 14.
3 The defendant did not enter an appearance in this action and it has come to trial undefended.
4 The only evidence before the court is the affidavits filed on behalf of the plaintiff. The court is not under a duty to conduct its own investigations of all the facts relevant to the validity of a will when an application of this kind is made: Re Levy (decd) (No 2) [1957] VR 662, 655 (Sholl J).
5 I am satisfied that the will of 11 July 2007 was executed in accordance with the formal requirements set out in s 8 of the Wills Act 1970 (WA). In that regard I refer to the affidavits of the two witnesses, Mr D'Angelo and Ms D'Angelo, and to the copy of the will annexed to the plaintiff's affidavit of scripts.
6 I am satisfied that Mr McNamara had testamentary capacity. As the will was properly executed, it is presumed to have been made by a person of competent understanding, unless there is evidence to the contrary: Bull v Fulton (1942) 66 CLR 295, 343; Wheatley v Edgar [2003] WASC 118 [24]. In this case, there is no suggestion that Mr McNamara lacked testamentary capacity, and the evidence before me reinforces the presumed position.
(Page 4)
7 The only issue raised in this action is whether, under s 14(1) of the Wills Act, the 2007 will is revoked by Mr McNamara's marriage to the plaintiff in 2009. Section 14 is in the following terms:
14. Subsequent marriage
(1) A will is revoked by the marriage of the testator except where -
(a) it is made in contemplation of the marriage; or
(b) the will is made in exercise of a power of appointment where the property thereby appointed would not in default of appointment pass to the testator’s personal representatives as such.
(2) A will made in contemplation of the marriage of the testator is void if the marriage is not solemnised, unless the will provides to the contrary.
(3) For the purposes of this section, a will is made in contemplation of a marriage if -
(a) it is expressed to be made in contemplation of the marriage; or
(b) there is other evidence establishing that the will was made in contemplation of the marriage.
(4) Subsection (3)(b) applies to the will of a person dying on or after the day on which section 12 of the Wills Amendment Act 2007 comes into operation, whether the will was executed or made before, on or after that day, and the will of a person who died before that day is to be construed as if that section had not come into operation.
- The Wills Amendment Act 2007 (WA) by which s 14 was amended and s 14(3) inserted came into operation on 9 February 2008, before the death of Mr McNamara. Thus s 14(3) applies in this case.
8 In Hoobin v Hoobin [2004] NSWSC 705, White J considered the meaning of the words 'in contemplation of a marriage' appearing in the New South Wales equivalent to s 14 of the Wills Act. After considering the authorities and some definitions, White J concluded:
In my view the phrase in ss 15(2) and (3) of the Act 'in contemplation of a marriage' means intending, proposing or expecting a marriage, or having a marriage in mind as a contingency to be provided for or as an end to be aimed at [53].
(Page 5)
9 I am satisfied on the evidence before me that Mr McNamara's will was made in contemplation of his marriage to the plaintiff. The evidence in the affidavits of the plaintiff, and Mr McNamara's relatives and friends, is as follows.
10 The plaintiff met Mr McNamara in early 2002. Within a space of a few months, they commenced living together and later purchased a house in mid-2002. In 2003, the plaintiff and Mr McNamara discussed the idea of getting married. They agreed that they would like to have a special celebration, which could involve flying their family and friends to where the ceremony would take place. The plaintiff and Mr McNamara agreed that they would set a date once they were in a suitable financial position to be able to afford to get married in the manner they both wanted.
11 The plaintiff and Mr McNamara spent the next few years planning and discussing wedding ideas with their families and friends. At that stage, it was apparent to Mr McNamara's relatives and friends that he was serious about marrying the plaintiff and was waiting for 'the right time' to have the wedding. Mr McNamara told a number of people that the plaintiff was 'the one'.
12 On 11 July 2007, the plaintiff and Mr McNamara both made wills in which they each left the other their entire estate. At that time, they had been in a de facto relationship for five years.
13 The plaintiff and Mr McNamara later decided they did not want to keep waiting for a better time to have the wedding, and they were married in December 2009. Mr McNamara died four months later.
14 In light of those facts, I find that the 2007 will of Mr McNamara was made in the contemplation of his marriage to the plaintiff. Consequently, it was not revoked by his marriage.
15 Accordingly, I would grant the orders sought by the plaintiff.
2
3
1