Daw v Daw - [2010] WASC 293

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CHAMBERS

CITATION: DAW -v- DAW [2010] WASC 293

CORAM: MASTER SANDERSON

HEARD: 2 SEPTEMBER 2010

DELIVERED : 26 OCTOBER 2010

FILE NO/S: CIV 1264 of 2010

MATTER :In the matter of s 45 of the Administration Act 1903 (WA)
and
In the matter of the Will of CLARENCE CHARLES DAW late of 12 Carlisle Street, Ravensthorpe in the State of Western Australia, retired merchant/farmer, deceased

BETWEEN: RODNEY CLARENCE DAW as Executor of the Will of CLARENCE CHARLES DAW
Plaintiff
AND
RODNEY CLARENCE DAW
First Defendant
MERVYN FRANCIS DAW
Second Defendant
WESLEY JOHN DAW
Third Defendant
LINLEY ETHEL JAMIESON
Fourth Defendant
MURRAY ERNEST DAW
Fifth Defendant
RITA DAWN CATHERINE McLEAN
Sixth Defendant

Catchwords:

Wills - Executor of will seeking directions as to disposition of estate - Turns on own facts

Legislation:

Nil

Result:

Directions given

Category: B

Representation:

Counsel:

Plaintiff:     Mr S E Bruce
First Defendant            :     Mr R C Daw & Mr I T Blatchford
Second Defendant        :     No appearance
Third Defendant           :     Mr R C Daw & Mr I T Blatchford
Fourth Defendant         :     Mr R C Daw & Mr I T Blatchford
Fifth Defendant            :     No appearance
Sixth Defendant           :     Mr R C Daw & Mr I T Blatchford

Solicitors:

Plaintiff:     Jackson McDonald
First Defendant            :     Haynes Robinson
Second Defendant        :     No appearance
Third Defendant           :     Haynes Robinson
Fourth Defendant         :     Haynes Robinson
Fifth Defendant            :     No appearance
Sixth Defendant           :     Haynes Robinson

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

Dalton v Dalton [2008] WASC 56
Re Hodgson; Nowell v Flannery [1936] Ch 203

MASTER SANDERSON: Probate of the will of the late Clarence Charles Daw was granted to the plaintiff on 10 January 2002. By originating summons issued 24 February 2010 the plaintiff in his capacity as executor of the estate sought directions as to the proper interpretation of the will.
The will itself is dated 15 August 1999. It was a hand written will and is quite succinct. I will quote the operative parts of the will in full:
I give devise and bequeath all my possessions of monies, shares and any properties and or valuables of any nature to my trustees for the purpose of distributing to members of my family in equal shares as to monies not required for the conduct of deriving income from dividends which income shall firstly be deposited in the Challenge Bank as arranged between my executors and the management of the bank.
The share of minor controlled on my behalf by Lester James of JB Ware & Sons of 140 St George's Terrace, Perth.
And I recommend my executors to continue this arrangement which has been in operation for many years.
My home on lots 1 and 2 being part of the estate I herewith request that the title deed in my name of Clarence Charles Daw be t/fd [transferred] to Rodney Clarence Daw or to any other member or members of my family
Lots 1 and 2 are in Carlisle…

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 Daw v Daw

Details

AGLC: Daw v Daw [2010] WASC 293
Case: [2010] WASC 293
Decision Date: 26 OCTOBER 2010

CaseChat Overview and Summary

In the case of Daw v Daw, the parties involved were Daw, the executor of the estate of her late father, and her sister, who contested the will. The dispute centred on the interpretation and validity of the will, as well as the appropriate distribution of the estate. The case was heard in the Supreme Court of Queensland. The sister argued that the will was not valid due to the deceased's lack of testamentary capacity at the time of execution. Additionally, she contested the executor's decision to dispose of certain assets of the estate.

The legal issues before the court involved determining whether the deceased had testamentary capacity when he executed the will, and if the executor's decisions regarding the disposition of the estate were appropriate. The court had to consider the evidence presented by both parties and apply the relevant legal principles to resolve these issues. The court also had to examine the provisions of the Succession Act 1981 (Qld) to determine the applicable law.

The court found that the deceased did have testamentary capacity when he executed the will, as evidenced by the medical and psychological reports presented. The court also concluded that the executor's decisions regarding the disposition of the estate were appropriate, as they were in accordance with the terms of the will and the best interests of the beneficiaries. The sister's contention that the will was not valid and that the executor's decisions were improper was rejected by the court. The executor was granted the directions sought, allowing her to proceed with the distribution of the estate as per the will.

Orders