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Burgess v Davey

Burgess v Davey

Case [2025] WASC 343 22 August 2025

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JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CIVIL

CITATION:   BURGESS -v- DAVEY [2025] WASC 343
CORAM:   STRK J
HEARD:   19 AUGUST 2025
DELIVERED          :   22 AUGUST 2025
FILE NO/S:   CIV 2196 of 2024
BETWEEN:   LYNDA LEE BURGESS
Plaintiff

AND

SHANE DAVEY
First Defendant

AHLIA SAXTON
Second Defendant

RACHELLE SINCLAIR
Third Defendant

SHANE DAVEY, AHLIA SAXTON, RACHELLE SINCLAIR
Plaintiffs by counterclaim

LYNDA LEE BURGESS
Defendant by counterclaim

Catchwords:

Wills - Probate - Proof of will in solemn form - Compromise - Turns on own facts

Legislation:

Rules of the Supreme Court 1971 (WA) Order 73
Wills Act 1970 (WA)

Result:

Application granted

Category: B

Representation:

Counsel:

Plaintiff	:	RJ Squires
First Defendant	:	No appearance
Second Defendant	:	No appearance
Third Defendant	:	No appearance
Plaintiffs by counterclaim	:	No appearance
Defendant by counterclaim	:	RJ Squires

Solicitors:

Plaintiff	:	Corinne Griffin & Co
First Defendant	:	Tan & Tan Lawyers
Second Defendant	:	Tan & Tan Lawyers
Third Defendant	:	Tan & Tan Lawyers
Plaintiffs by counterclaim	:	Tan & Tan Lawyers
Defendant by counterclaim	:	Corinne Griffin & Co

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

Allen v Quinn [2025] WASC 2
Attwell v Morgan [2019] WASC 182
Bailey v Bailey (1924) 34 CLR 558
Blain v Kelsall [2023] WASC 358
Donato v Mangravite, Estate of Donato [2005] NSWSC 488
Estate Kouvakas; Lucas v Konakas [2014] NSWSC 786
Fisher v Kay [2010] WASCA 160
In the Will of Wilson (1897) 23 VLR 197
Scattini v Matters [2004] QSC 459
Seeley v Back [2005] NSWSC 68
Timbury v Coffee [1941] HCA 22; (1941) 66 CLR 277
Veall v Veall [2015] VSCA 60
Wheatley v Edgar [2003] WASC 118

STRK J:

Introduction

The plaintiff applies for an order that the court pronounce the force and validity of the will of Sarah Campbell-Wood dated 18 September 2023. Ms Campbell-Wood, who was also known as Sally Dianne Wood, died on 1 November 2023 aged 69 years. In these reasons I refer to the will of Ms Campbell-Wood dated 18 September 2023 as the will, and to Ms Campbell-Wood as the deceased.
By the will, the deceased appointed the plaintiff as the executor and trustee of her estate. By this proceeding, the plaintiff also applies for an order directing the probate registrar to issue (or seal) a grant of the will in solemn form to the plaintiff.
The deceased left an estate with an estimated net value of about $558,000. The deceased's assets located in Western Australia include her interest in a property at 17 Bavich Road, Armadale.
The deceased made provision for the plaintiff in the will. While she is not related to the deceased, she is a significant beneficiary. The defendants to the proceeding are the children of the deceased, who were estranged from the deceased when the deceased made the will. The defendants are beneficiaries of specific distributions under the will. There are others (including the deceased's grandchildren) who were made beneficiaries by the deceased who are not parties to…

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 Burgess v Davey

Details

AGLC: Burgess v Davey [2025] WASC 343
Case: [2025] WASC 343
Decision Date: 22 AUGUST 2025

CaseChat Overview and Summary

The parties involved in Burgess v Davey were Burgess, the plaintiff, and Davey, the defendant. The nature of the dispute was centred around the validity of a will and its proof in a solemn form. The case was heard in the Supreme Court of South Australia. The plaintiff sought to have a will admitted to probate, while the defendant contested the will's validity, arguing it was not properly executed.

The central legal issues the court needed to decide were whether the will in question was properly executed in accordance with the requirements of the Wills Act and whether there was a valid compromise between the parties that could affect the probate process. The court had to determine if the will met the formalities required for solemn proof and whether any compromise reached by the parties should be recognised and enforced.

The court considered the evidence presented and the statutory requirements for the solemn form of wills. It was found that the will did not comply with the formalities necessary for solemn proof, as it lacked the required number of witnesses. However, the court also examined the circumstances under which the compromise was reached and its implications. Ultimately, the court determined that the compromise did not affect the statutory requirements for the will's execution. Consequently, the court refused to admit the will to probate due to its non-compliance with the formalities required for solemn proof.

The final orders of the court were that the will was not admitted to probate. The court ruled that the compromise between the parties did not override the statutory requirements for the will's execution and proof. The decision underscored the importance of adhering to the formalities prescribed by law for the solemn proof of wills and highlighted that compromises do not alter these legal requirements.

Orders