Burges v Serra-Sanfelin
[2009] WASC 320
•4 NOVEMBER 2009
BURGES -v- SERRA-SANFELIN [2009] WASC 320
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2009] WASC 320 | |
| 04/11/2009 | |||
| Case No: | CIV:1144/2008 | 28 OCTOBER 2009 | |
| Coram: | HALL J | 28/10/09 | |
| 5 | Judgment Part: | 1 of 1 | |
| Result: | Pronouncement for the force and validity of the will dated 24 August 1998 Grant of probate in solemn form | ||
| B | |||
| PDF Version |
| Parties: | DAVID FRANCIS BURGES DAVID HAROLD SERRA-SANFELIN PAUL JOHN SERRA THE PUBLIC TRUSTEE ANTONY IRWIN BURGES |
Catchwords: | Probate Proof in solemn form Whether will duly executed |
Legislation: | Wills Act 1970 (WA), s 8 |
Case References: | Timbury v Coffee (1941) 66 CLR 277 Wheatley v Edgar [2003] WASC 118 |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
- IN CIVIL
- Plaintiff
AND
DAVID HAROLD SERRA-SANFELIN
First Defendant
PAUL JOHN SERRA
Second Defendant
THE PUBLIC TRUSTEE
Third Defendant
ANTONY IRWIN BURGES
Fourth Defendant
Catchwords:
Probate - Proof in solemn form - Whether will duly executed
(Page 2)
Legislation:
Wills Act 1970 (WA), s 8
Result:
Pronouncement for the force and validity of the will dated 24 August 1998
Grant of probate in solemn form
Category: B
Representation:
Counsel:
Plaintiff : Mr D L Jones
First Defendant : No appearance
Second Defendant : No appearance
Third Defendant : No appearance
Fourth Defendant : No appearance
Solicitors:
Plaintiff : Brickhills
First Defendant : Meredith Hunter & Associates
Second Defendant : Meredith Hunter & Associates
Third Defendant : Public Trustee (WA)
Fourth Defendant : In person
Case(s) referred to in judgment(s):
Timbury v Coffee (1941) 66 CLR 277
Wheatley v Edgar [2003] WASC 118
(Page 3)
- HALL J:
(This judgment was delivered extemporaneously on 28 October 2009 and has been edited from the transcript.)
1 John Charles Serra died on a date unknown between 15 and 29 September 2005. His body was found on the latter date at his home in Gidgegannup. An investigation by the coroner determined that whilst the cause of death could not be ascertained, there was no evidence to suggest that it was the result of anything other than natural causes.
2 On 26 April 2007 the plaintiff, David Francis Burges, applied for a grant of probate of the will of the deceased. Mr Burges was appointed executor of the will of the deceased dated 24 August 1998. On 11 May 2007 the Public Trustee, the third defendant, lodged a caveat against the grant. The basis of this caveat was that the Public Trustee claimed an interest in the estate of the deceased as executor appointed by a will dated 14 May 1967. On 3 October 2007, David Harold Serra-Sanfelin, the first defendant, lodged a caveat against the grant. The basis of this caveat was stated to be an interest as the half brother of the deceased.
3 As a consequence of the caveats, the plaintiff has applied to the court for orders pronouncing the force and validity of the 1998 will and that there be a grant of probate in solemn form. On such an application the court must be satisfied on evidence adduced by the parties of the formal validity of the will and the capacity of the testator. As to capacity, if a will is rational on its face and is proved to have been executed and attested in the manner prescribed by law, it is presumed in the absence of evidence to the contrary to have been made by a person of competent understanding: Timbury v Coffee (1941) 66 CLR 277, 383 and Wheatley v Edgar [2003] WASC 118 [24] (EM Heenan J).
4 I am satisfied that all interested parties have been given notice of these proceedings. In addition to the first and third defendants, who I have already mentioned, the other parties are Paul John Serra, the second defendant, and Antony Irwin Burges, the fourth defendant. Paul Serra and David Serra were named as beneficiaries in the 1967 will. They are referred to in that will as the deceased's brothers. I have assumed that the David Serra referred to in that will is the same person as the first defendant, David Harold Serra-Sanfelin. Antony Burges is the sole beneficiary named in the 1998 will. Whether it was necessary to join Paul Serra and Antony Burges as defendants need not be determined, but doing so has placed them on notice of these proceedings.
(Page 4)
5 The evidence relied upon is as follows: the affidavit of David Burges of 26 April 2007 from the probate file; the affidavit of David Serra Sanfelin of 19 March 2008; the affidavit of David Burges of 7 April 2008; the affidavit of Lindsay Mansell of 5 June 2009; the affidavit of Gregory Cuss of 15 June 2009; the will of 24 August 1998 from the probate file and the certified death certificate from the probate file.
6 On the basis of that evidence I find that the deceased executed a will on 14 May 1967. That will appointed the public trustee as executor and bequeathed the deceased's estate after payment of debts and funeral expenses to his brothers Paul and David Serra in equal shares.
7 In 1998 a new will was prepared for the deceased by a firm of solicitors. That will was executed on 24 August 1998. It included a revocation of all prior wills and included a declaration by the deceased that the failure to leave any part of his estate to his family was explained, 'by the fact that they have not taken any care or interest in my personal welfare'.
8 I am satisfied that the 1998 will was executed in accordance with s 8 of the Wills Act 1970 (WA). In that regard I refer to the affidavits of Mr Mansell and Mr Cuss, who were the two attesting witnesses to that will. Those persons depose that they witnessed the deceased sign the 1998 will in their presence and that they then both signed the will in his presence and the presence of each other.
9 The only issue raised on the pleadings is that the first and second defendants do not admit that the 1998 will was duly executed in the presence of two witnesses and is the unrevoked last will of the deceased. I have already dealt with the issue of due execution. As to whether the 1998 will is the last will of the deceased, the uncontested evidence is that the only testamentary dispositions or instruments made by the deceased that any of the parties are aware of are the 1967 and 1998 wills. As to whether the 1998 will remained unrevoked, there is no evidence to suggest that the deceased revoked it. The affidavit of David Burges of 26 April 2007 deposes to the fact that the deceased did not marry after executing the 1998 will. This is also confirmed by the death certificate, which refers to the marital status of the deceased as single.
(Page 5)
10 No issue of testamentary capacity was raised. In the circumstances there is nothing to rebut the presumption of capacity that arises from the due execution of the will. In any event the will is entirely rational on its face. None of the defendants have sought to be heard on this application. I understand they are content to abide by the decision of the court. Accordingly, orders will be made as sought.
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