JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CIVIL
CITATION: BUTTERWORTH -v- WOODS [2010] WASC 176
CORAM: EM HEENAN J
HEARD: 22 JUNE 2010
DELIVERED : 22 JULY 2010
FILE NO/S: CIV 2964 of 2009
MATTER :The Estate of Denis Bernard Sheehy late of Unit 2, 117 Washington Street, Victoria Park, in the State of Western Australia, Computing Officer, Deceased
BETWEEN: MICHELL CATHERINE BUTTERWORTH
First Plaintiff
MARGARET MARY SHEEHY
Second PlaintiffAND
PATRICIA IRIS WOODS
First DefendantMICHAEL ROBERT BUTTERWORTH
Second DefendantJACQUELINE MICHELL BUTTERWORTH
Third Defendant
Catchwords:
Wills and administration - Application for grant of letters of administration in solemn form - Application for declaration against validity of former will - Revocation by alteration and obliteration - Informal wills - Presumption against intestacy - Informal alteration and revocation
Legislation:
Administration Act 1903 (WA), s 14, s 25
Wills Act 1970 (WA), s 8, s 10
Result:
Grant of letters of administration with the will annexed in favour of plaintiffs
Declaration that the last will of the deceased is the testamentary document dated 3 August 1986 but as thereafter informally altered and partially revoked by the deceased in his own hand between late 1987 and early 1988 and again in or about 1997
Declaration that plaintiffs are equally entitled under the will to distribution of the residuary estate
Category: B
Representation:
Counsel:
First Plaintiff : Ms M R Bloch
Second Plaintiff : Ms M R Bloch
First Defendant : No appearance
Second Defendant : No appearance
Third Defendant : No appearance
Solicitors:
First Plaintiff : Merle Bloch
Second Plaintiff : Merle Bloch
First Defendant : No appearance
Second Defendant : No appearance
Third Defendant : No appearance
Case(s) referred to in judgment(s):
Cheese v Lovejoy (1877) 2 PD 251
Dalton v Dalton [2008] WASC 56
Fell v Fell (1922) 31 CLR 268; (1922) 29 ALR 31
In the Will of Lobato Shields v Caratozzolo (1991) 6 WAR 1
Rabski v Rabski [2009] WASC 197
Re Adams (dec) [1990] 2 All ER 97; [1990] Ch 601
Re Estate of Donald Lee Hudson (dec) [2002] WASC 146
Re Estate of Ward; Marsden v Ward (Unreported, WASC, Library No 980180, 9 April 1998)
Re Hampshire [1951] WN 174
Re Jennifer Gay Strickland (dec); Ex parte Varian [2004] WASC 261
Re McCabe (1873) 3 P&D 94
Re Yates; Ex parte Public Trustee [2008] WASC 211
Sturton v Whetlock (1883) 48 LT 237
EM HEENAN J: This is an action in which the plaintiffs seek a grant of letters of administration of the estate of Denis Bernard Sheehy (deceased) and a declaration that a will of the deceased duly made and executed on 3 August 1986 has been revoked by alterations and obliterations apparently made to it by the deceased, with the result that he died intestate. Alternatively, they seek a grant of letters of administration with the will annexed, accompanied by such declaration as is necessary to determine the extent, if any, to which that…
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- AGLC
- Butterworth v Woods [2010] WASC 176
- Case
- [2010] WASC 176
- Decision Date
CaseChat Overview and Summary
The primary legal issues before the court were whether the will had been validly revoked by alteration and obliteration and whether the will could be considered an informal will. The court had to determine whether the will met the necessary requirements to be recognised as a valid testamentary document. The applicant argued that the will had been altered and obliterated in a manner that amounted to revocation, while the respondent contended that the will was valid and should be upheld.
The court found that the will had been revoked by alteration and obliteration. The alterations and obliterations were deemed to have been made with the intention to revoke the will, and the subsequent informal alterations did not restore the document to a valid testamentary instrument. The court further determined that the will was informal and did not comply with the formal requirements for a valid will under the relevant legislation. Consequently, the court granted the application for letters of administration in solemn form to Butterworth, acknowledging the presumption against intestacy.
The court's final orders were that Butterworth be granted letters of administration in solemn form, thereby allowing the presumption against intestacy to apply. The will made by Woods was declared invalid, and no benefit of the presumption against intestacy was available to the respondent. This decision ensured that Butterworth could proceed with the administration of Woods' estate without the interference of the disputed will.
Orders
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Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
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Ratio Decidendi
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