DE BRUIN -v- DE BRUIN [2004] WASC 20

Jurisdiction:	SUPREME COURT OF WESTERN AUSTRALIA	Citation No:	[2004] WASC 20
Case No:	PRO:3109/2003	Heard:	6 FEBRUARY 2004
Coram:	LE MIERE J	Delivered:	20/02/04
No of pages:	6	Judgment Part:	1 of 1
Result:	Caveat removed
Category:	B
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Parties:	KEVIN HENK MARIA DE BRUIN PAUL WILLIAM FERDINAND DE BRUIN
Catchwords:	Probate Application under s 64 Administration Act 1903 (WA) to remove caveat Circumstances in which a caveat may be removed Undue influence Whether sufficient grounds exist to support plea of undue influence Fraud Whether sufficient grounds exist to support plea of fraud
Legislation:	Administration Act 1903, s 63(1), s 64(1), s 64(3)
Case References:	Hayden v Bond [2003] WASC 96 In the Will of Young (1968) 70 SR (NSW) 386 West Australian Trustees Ltd v Poland (SC WA), 6 January 1988, Library No 7000 Pearse v Michael [2002] WASC 135

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

IN CHAMBERS

CITATION : DE BRUIN -v- DE BRUIN [2004] WASC 20 CORAM : LE MIERE J HEARD : 6 FEBRUARY 2004 DELIVERED : 20 FEBRUARY 2004 FILE NO/S : PRO 3109 of 2003 BETWEEN : KEVIN HENK MARIA DE BRUIN

Plaintiff

AND

PAUL WILLIAM FERDINAND DE BRUIN

Defendant

Catchwords:

Probate - Application under s 64 Administration Act 1903 (WA) to remove caveat - Circumstances in which a caveat may be removed - Undue influence - Whether sufficient grounds exist to support plea of undue influence - Fraud - Whether sufficient grounds exist to support plea of fraud

Legislation:

Administration Act 1903, s 63(1), s 64(1), s 64(3)

Result:

Caveat removed

(Page 2)

Category: B

Representation:

Counsel:

Plaintiff : Mr J C Curthoys

Defendant : In person

Solicitors:

Plaintiff : Sceales & Co

Defendant : In person

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

Hayden v Bond [2003] WASC 96
In the Will of Young (1968) 70 SR (NSW) 386
West Australian Trustees Ltd v Poland, unreported; SCt of WA; Library No 7000; 6 January 1988

Case(s) also cited:

Pearse v Michael [2002] WASC 135

(Page 3)

1 LE MIERE J: These proceedings were commenced by a chamber summons dated 14 November 2003 whereby the plaintiff, the executor of the deceased, Petrus Willem De Bruin, seeks the removal of a caveat lodged by the defendant, Paul William Ferdinand De Bruin, against an application for probate of the Will of the deceased.

2 The deceased, who I will also refer to as Petrus, died on 24 May 2003, leaving a widow, Henriette Paula Johanna De Bruin (Henriette), and three adult children, Peter Charles Maria De Bruin (Peter), Paul William Ferdinand De Bruin (Paul or the defendant) and the plaintiff, Kevin Henk Maria De Bruin (Kevin or the plaintiff).

3 The Will of which probate is sought was made by Petrus on 27 February 2002. By his Will, Petrus appointed the plaintiff executor and trustee of his estate. Petrus bequeathed $500,000 to the plaintiff, $50,000 to the defendant and $50,000 to Mary Schotman. There is…

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 De Bruin v De Bruin

Details

AGLC: De Bruin v De Bruin [2004] WASC 20
Case: [2004] WASC 20
Decision Date

CaseChat Overview and Summary

The case of De Bruin v De Bruin [2004] WASC 20 involved a legal dispute over the validity of a will and the subsequent application for its probate. The plaintiff, Kevin Henk Maria De Bruin, sought to remove a caveat lodged by the defendant, Paul William Ferdinand De Bruin, against the probate of their father's will. The will, made by Petrus Willem De Bruin, named Kevin as the executor and trustee of the estate, bequeathing specific sums to the plaintiff, the defendant, and others, and leaving the remainder to a charitable organisation. The defendant had lodged a caveat demanding notice before any action was taken regarding the will.

The primary legal issues before the court were whether the caveat was vexatious and if there were sufficient grounds to support the claims of undue influence or fraud in the making of the will. The court needed to determine if the defendant had provided material to show genuine doubt about the will's validity and circumstances warranting further investigation. Additionally, the court had to assess whether the defendant had reasonable grounds to claim undue influence or fraud.

The court found that the defendant had failed to provide sufficient evidence to support the claims of undue influence or fraud. The plaintiff had not misled Petrus regarding the contents of Henriette's will. The court held that the caveat was vexatious and ordered its removal. The decision concluded that there was no basis for maintaining the caveat and that it should be regarded as vexatious in the context of the application.

In summary, the court granted the plaintiff's application to remove the caveat, finding that the defendant had not provided sufficient evidence to justify its retention. The court's ruling effectively cleared the way for the probate of the will to proceed.

Orders