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Butterworth v Woods

Butterworth v Woods

Case [2010] WASC 176 22 July 2010

Revocation by Alteration and Obliteration

Informal Wills

Presumption Against Intestacy

Succession Law

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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 Plaintiff
AND
PATRICIA IRIS WOODS
First Defendant
MICHAEL ROBERT BUTTERWORTH
Second Defendant
JACQUELINE 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):

Aoun v Clark [2000] NSWSC 274
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…

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 Butterworth v Woods

Details

AGLC: Butterworth v Woods [2010] WASC 176
Case: [2010] WASC 176
Decision Date: 22 JULY 2010

CaseChat Overview and Summary

The case of Butterworth v Woods involved an application for the grant of letters of administration in solemn form. The dispute centred around the validity of a former will and the circumstances surrounding its alleged revocation. The case was heard in the Supreme Court of Victoria. The applicant, Butterworth, sought to challenge the validity of the will made by Woods, the deceased, and to be appointed as the sole administrator of Woods' estate with the benefit of the presumption against intestacy.

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