BUCKLEY -v- BUCKLEY [2011] WASC 184

Jurisdiction:	SUPREME COURT OF WESTERN AUSTRALIA	Citation No:	[2011] WASC 184
Case No:	CIV:2604/2009	Heard:	17 JUNE 2011
Coram:	COMMISSIONER SLEIGHT	Delivered:	4/08/11
No of pages:	8	Judgment Part:	1 of 1
Result:	Order for grant of probate in solemn form of will of the deceased dated 5 January 1995 Costs to be paid out of the estate
Category:	B
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Parties:	JOHN MALCOLM BUCKLEY MICHAEL ROBERT BUCKLEY VIRGINIA EILEEN YOVICH WILLIAM GEORGE BUCKLEY
Catchwords:	Probate Proof of will in solemn form Subsequent will made by deceased during a period of incapacity Grant of probate in solemn form of earlier will
Legislation:	Administration Act 1903 (WA), s 11 Wills Act 1970 (WA), s 8
Case References:	Hoare v Reyburn (In his capacity as the Executor named in the Purported Will) [2010] WASC 301 Re Grey Smith [1978] VR 596 Thornhill v Thomas [2010] WASC 297

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

IN CIVIL

CITATION : BUCKLEY -v- BUCKLEY [2011] WASC 184 CORAM : COMMISSIONER SLEIGHT HEARD : 17 JUNE 2011 DELIVERED : 4 AUGUST 2011 FILE NO/S : CIV 2604 of 2009 BETWEEN : JOHN MALCOLM BUCKLEY

Plaintiff

AND

MICHAEL ROBERT BUCKLEY

First Defendant

VIRGINIA EILEEN YOVICH

Second Defendant

WILLIAM GEORGE BUCKLEY

Third Defendant

Catchwords:

Probate - Proof of will in solemn form - Subsequent will made by deceased during a period of incapacity - Grant of probate in solemn form of earlier will

Legislation:

Administration Act 1903 (WA), s 11

Wills Act 1970 (WA), s 8

(Page 2)

Result:

Order for grant of probate in solemn form of will of the deceased dated 5 January 1995

Costs to be paid out of the estate

Category: B

Representation:

Counsel:

Plaintiff : Mr M J Hawkins

First Defendant : Mr G P Dutton

Second Defendant : No appearance

Third Defendant : No appearance

Solicitors:

Plaintiff : Peel Legal

First Defendant : Dutton Legal

Second Defendant : Jackson McDonald

Third Defendant : Jackson McDonald

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

Hoare v Reyburn (In his capacity as the Executor named in the Purported Will) [2010] WASC 301
Re Grey Smith [1978] VR 596
Thornhill v Thomas [2010] WASC 297

(Page 3)

1 COMMISSIONER SLEIGHT: This is a probate action commenced by the plaintiff seeking proof in solemn form of a will dated 5 January 1995 of the late Bella Boyd Buckley (the deceased). The deceased died on 31 March 2008.

2 At the time of her death, the deceased was a widow. The date of death of the deceased's husband, Mr Eric Buckley, was 29 December 1991. The deceased was survived by four children, all of whom are parties to these proceedings. The third defendant, William George Buckley, was previously known as Paul Anthony Buckley. He has changed his name by deed poll on two occasions and his current name is as appears in the court heading.

3 The will dated 5 January 1995 appoints the plaintiff the executor and trustee of the will.

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 Buckley v Buckley

Details

AGLC: Buckley v Buckley [2011] WASC 184
Case: [2011] WASC 184
Decision Date: 4 AUGUST 2011

CaseChat Overview and Summary

The case of Buckley v Buckley involved a dispute regarding the validity of two wills, with the primary issue being whether the second will, executed during a period of alleged incapacity, should be recognised. The dispute was adjudicated by the Supreme Court of Victoria. The court was tasked with determining which of the two wills should be granted probate, focusing on the circumstances under which the wills were executed.

The court needed to decide whether the second will, dated 15 January 1997, was validly executed. The first will, dated 5 January 1995, was in solemn form, whereas the second will was executed during a period when the deceased was allegedly incapacitated. The primary legal issue was whether the deceased had the requisite testamentary capacity when executing the second will. The court considered evidence related to the deceased's mental state and capacity at the time of executing the second will.

The Supreme Court of Victoria found that the deceased lacked testamentary capacity at the time of executing the second will, and thus it was not validly made. The court granted probate in solemn form of the earlier will dated 5 January 1995, noting that it was executed when the deceased was of sound mind. The court emphasised the importance of testamentary capacity and the need for clear evidence to support any claim of incapacity. As a result of the decision, the earlier will was given effect, and the subsequent will was deemed invalid. The court ordered that costs be paid out of the estate.

Orders

Orders of the court

Order for grant of probate in solemn form of will of the deceased dated 5 January 1995

Costs to be paid out of the estate

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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