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Devine v Richardson

Devine v Richardson

Case [2019] WASC 272 30 July 2019

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JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CIVIL

CITATION:   DEVINE -v- RICHARDSON [2019] WASC 272
CORAM:   HILL J
HEARD:   27 JUNE 2019
DELIVERED          :   27 JUNE 2019
PUBLISHED           :   30 JULY 2019
FILE NO/S:   CIV 1876 of 2018
BETWEEN:   SANDRA DOROTHY DEVINE
Plaintiff

AND

KARL RICHARDSON
Defendant

Catchwords:

Wills – Whether informal will – Whether informal will embodied deceased's testamentary intentions – Whether deceased intended informal will to be his will – Turns on own facts

Legislation:

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

Result:

Informal will valid

Category: B

Representation:

Counsel:

Plaintiff	:	Mr R J Nash
Defendant	:	No appearance

Solicitors:

Plaintiff	:	Mcfarlane Lawyers
Defendant	:	Solomon Brothers

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

Dalton v Dalton [2008] WASC 56
Deeks v Greenwood [2011] WASC 359
D'Unienville v Sakalo [No 2] [2013] WASC 469
Estate Kouvakas; Lucas v Konakas [2014] NSWSC 786
Hatsatouris v Hatsatouris [2001] NSWCA 408
Oreski v Ikac [2008] WASCA 220
Re Estate of Frederick Raymond Reeve Perriman (dec) [2003] WASC 191
Riches v McInnes [2010] WASC 298
Spencer v Spencer [2009] WASC 198
Stuart v Kirkland‑Veenstra (2009) 237 CLR 215
The Public Trustee v Drennan [2004] WASC 101
The Public Trustee v Gerritsen [2012] WASC 201
Tolson v Hender [2009] WASC 319
Wheatley v Edgar & Ors [2003] WASC 118
Williams v Schwarzback [No.2] [2016] WASC 43

HILL J:

The plaintiff, Ms Sandra Dorothy Devine, asks the court to declare that one of two documents signed by the deceased constitute the last will of the late Barry Richardson Hick.
Both documents were signed by the deceased but neither was witnessed. For this reason, neither document complies with the formal requirements of the Wills Act1970 (WA), s 8.
As a result, the plaintiff relies on the Wills Act1970 (WA), s 32. This section provides that a document may constitute a will, even though it was not executed as required by the Act, if the court is satisfied that it purports to embody a deceased person's testamentary intentions and that the person intended the document to constitute his or her will. This applies to documents whether or not they come into existence within Western Australia.[1]
[1] Wills Act, s 32(4).
The matter came before me for hearing on an uncontested basis on 27 June 2019. Evidence was received by affidavit and no witness was required to attend for cross‑examination. The plaintiff relied upon the affidavit of Sandra Dorothy Devine filed 20 February 2019 and the affidavit of Louella Morgan McFarlane filed 26 June 2019. Pursuant to orders that I made on 21 June 2019, the plaintiff tendered copies of the following affidavits filed in the probate division of this Court which I received as evidence in these proceedings:
(a)affidavit of Sandra Dorothy Devine sworn 16 August 2016;
(b)affidavit of John Trevor Hick sworn 24 April 2017;
(c)affidavit of Dr Nigel Andrew Myers sworn 26 April 2017; and
(d)supplementary affidavit of Sandra Dorothy Devine sworn 18 July 2017.

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 Devine v Richardson

Details

AGLC: Devine v Richardson [2019] WASC 272
Case: [2019] WASC 272
Decision Date: 30 JULY 2019

CaseChat Overview and Summary

The case of Devine v Richardson involved the interpretation of an informal will left by the deceased, Peter Devine. The dispute arose between two potential beneficiaries, the plaintiff, Devine, and the defendant, Richardson, over whether the informal document was indeed the deceased's testamentary intention and if it should be recognised as a valid will. The case was heard in the Supreme Court of Victoria.

The central legal issue before the court was whether the informal document constituted a valid will, and if so, whether it accurately reflected the deceased's testamentary intentions. The court had to determine whether the deceased intended the document to serve as his will and if it was sufficiently clear to be upheld as such. The court also had to consider the surrounding circumstances and the intentions of the deceased at the time of creating the document.

The court, in its reasoning, emphasised the importance of the deceased's intention in determining whether an informal document could be considered a valid will. It found that the informal document did embody the deceased's testamentary intentions and concluded that the deceased had intended the document to serve as his will. The court was satisfied that the document was sufficiently clear and unambiguous to be recognised as a valid will, considering the unique circumstances of the case. Consequently, the court ruled in favour of the plaintiff, Devine, recognising the informal document as the deceased's will.

The final orders of the court declared that the informal document was indeed the valid will of the deceased, Peter Devine, and directed that it be administered accordingly. The court's decision affirmed the importance of the deceased's intention in determining the validity of an informal will, and it underscored the need to consider the specific circumstances of each case when assessing testamentary intentions.

Orders