Blain v Kelsall - [2023] WASC 358

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CIVIL

CITATION:   BLAIN -v- KELSALL [2023] WASC 358
CORAM:   HOWARD J
HEARD:   21 SEPTEMBER 2023
DELIVERED          :   21 SEPTEMBER 2023
FILE NO/S:   CIV 1103 of 2023
BETWEEN:   DANIELLE EVA BLAIN
First Plaintiff
ROBERT JOHN NASH
Second Plaintiff
AND
ELIZABETH HELEN KELSALL
First Defendant
ROBERT JOHN FRAYNE
Second Defendant
MICHAEL JULIAN FRAYNE
Third Defendant
SARAH MARGARET FRAYNE
Fourth Defendant

Catchwords:

Application to prove will in solemn form - Following Deed of Family Arrangement plaintiffs given leave to proceed on an undefended basis - Presumption that testator was competent and understanding where will was duly executed - Will proved in solemn form

Legislation:

Nil

Result:

Application allowed

Category: B

Representation:

Counsel:

First Plaintiff	:	L M McFarlane
Second Plaintiff	:	L M McFarlane
First Defendant	:	No appearance
Second Defendant	:	No appearance
Third Defendant	:	No appearance
Fourth Defendant	:	In Person

Solicitors:

First Plaintiff	:	McFarlane Lawyers
Second Plaintiff	:	McFarlane Lawyers
First Defendant	:	Biddulph & Turley (Mount Pleasant)
Second Defendant	:	In Person
Third Defendant	:	Zagami Legal
Fourth Defendant	:	Zagami Legal

Case referred to in decision:

Wheatley v Edgar [2003] WASC 118

HOWARD J:

By a writ endorsed with a statement of claim dated 3 February 2023, the plaintiffs seek to prove a will dated 25 June 2020 (2020 Will) of Margaret Helen Frayne who died on 5 September 2022 (Deceased) in solemn form.
The following facts are taken from the evidence led by the plaintiffs at Trial and were not contested.
The Deceased was born 18 April 1941 and died in the State on 5 September 2022. She was 81 at the time of her death, and had married only once. Her husband pre-deceased her.
The Deceased left four children, being the first to fourth defendants.
The plaintiffs were appointed to be joint and several executors of the 2020 Will by its cl 2.1. They were also appointed trustees of each trust under the 2020 Will by cl 2.2. They are accordingly proper plaintiffs in this matter.
Initially, the first defendant contested the Deceased's capacity to make the 2020 Will and disputed its validity. That was the only factual matter put in dispute by the first defendant. She did that by a Defence and Counterclaim filed 17 March 2023.
By that counterclaim, the first defendant sought to prove an earlier will made 26 March 2012 in solemn form.
Initially, the second defendant filed a Notice of Intention to Abide by Decision on 27 February 2023. The second defendant subsequently filed a notice of Defence and Counterclaim filed 8 April 2023.
The Deceased's children (the first to fourth defendants) were the nominated Primary Beneficiaries under the 2020 Will.
A Deed of Family Arrangement was entered into on 18 July 2023 between the plaintiffs and the first to fourth defendants which agreed to the following orders in this action:
(1)the plaintiffs continue with this action to prove the 2020 Will in solemn form on…

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 Blain v Kelsall

Details

AGLC: Blain v Kelsall [2023] WASC 358
Case: [2023] WASC 358
Decision Date

CaseChat Overview and Summary

Danielle Eva Blain and Robert John Nash, the executors and trustees of Margaret Helen Frayne's estate, sought to prove the validity of a will dated 25 June 2020, executed by Margaret Frayne, who passed away on 5 September 2022. The application was contested by the first defendant, Elizabeth Helen Kelsall, who questioned the deceased's capacity to make the will. However, the other defendants did not contest the will's validity and reached a Deed of Family Arrangement with the plaintiffs. The plaintiffs were granted leave to proceed with the application on an undefended basis. The primary legal issues the court had to address were whether the deceased had the capacity to make the will, whether the will was properly executed, and if the presumption of competence and understanding applied to the deceased when she made the will.

The court found that Margaret Helen Frayne had the capacity to make the will, and the will was properly executed. The court considered the evidence provided by the witnesses, including Ms. Cameron, who drafted the will based on the deceased's instructions, and Dr. Nicholas, who witnessed the will's execution. The court also considered the Deed of Family Arrangement, which showed that the deceased's children did not oppose the will's validity. The court concluded that the deceased was competent and understanding when she made the will, and there was no reason to doubt the presumption of competence and understanding. The court was satisfied that the will was the product of a competent and understanding maker, and it was duly executed.

In light of the evidence presented and the Deed of Family Arrangement, the court found that the plaintiffs could prove the will in solemn form with comfortable satisfaction. The court considered the deceased's children, who were the primary beneficiaries under the will, did not oppose the will's validity and did not propose an alternative will. The court granted the plaintiffs' application to prove the will in solemn form. The court also ordered that the plaintiffs' costs of the action be paid from the estate as a testamentary expense and that there be no other order as to costs.

Orders