Wills - Probate - Will form filled out by deceased but unexecuted - Document purporting to embody testamentary intentions of deceased - Whether intended to constitute will of deceased - Interpretation of Wills Act 1970 (WA), s 34 - Onus and burden of proof - Costs rules discussed

Legislation:

Wills Act 1970 (WA), s 34

Result:

Order pronouncing validity of will
Parties to have their costs taxed and paid out of estate

Category: A

Representation:

Counsel:

Plaintiff:     Dr J J Hockley
First Defendant             :     Mr P S Bates
Second Defendant         :     Mr P S Bates

Solicitors:

Plaintiff:     Lewis Blyth & Hooper
First Defendant             :     PSB Legal
Second Defendant         :     PSB Legal

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

Briginshaw v Briginshaw (1938) 60 CLR 336
Hatsatouris v Hatsatouris [2001] NSWCA 408
In the Matter of the Will of Lobato (1991) 6 WAR 1
In the Matter of the Will of Trinidad (dec); Ex p. The Public Trustee (Unreported, WASC, Library No 980504, 28 August 1998)
Oreski v Ikac [2007] WASC 195
Oreski v Ikac [2007] WASC 195 (S)
Re Application of Brown; Estate of Springfield (1991) 23 NSWLR 535
Re Estate of Perryman (dec) [2003] WASC 191
The Estate of Hines v Hines [1999] WASC 111

MURRAY J:

The family

In November 1998, the plaintiff, then Mrs Welsh, commenced a de facto relationship with the deceased, John Dolan. To that relationship he brought two children from a previous marriage, the defendants Steven and Christopher. Steven had been born on 26 May 1987, and so he would then have been 11 years old. Christopher had been born on 3 March 1993, and so he would then have been a little boy of 5 years of age.
Mrs Welsh also brought two children to the relationship. They were her daughter, Stevie Welsh, and her son, Luke Welsh. Stevie had been born on 21 March 1986, and so she would then have been 12. Luke was born on 2 August 1988, and so he would then have been 10.
The relationship lasted until Mr Dolan died on 30 December 2006. He was killed by Luke, who fatally wounded him by stabbing him. I will return to the background and circumstances of that event, but on 2 October 2007, Luke appeared before McKechnie J in this Court, charged on indictment with the wilful murder of his stepfather. He pleaded guilty to manslaughter and that plea was accepted by the prosecution. On 8 October he was sentenced, before taking into consideration time spent in custody on remand, to 3 years and 4 months imprisonment which converted to a term of 2 years and 6 months. The term was undoubtedly lenient having regard, the judge said, to…

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 Dolan v Dolan

Details

AGLC: Dolan v Dolan [2007] WASC 249
Case: [2007] WASC 249
Decision Date: 29 OCTOBER 2007

CaseChat Overview and Summary

The case of Dolan v Dolan was brought before the Supreme Court of Western Australia. The deceased had left behind a document which purported to be a testamentary disposition of their estate but which was not signed or witnessed in the manner required by law. The dispute was whether the document was intended by the deceased to constitute their will, or if it was merely an incomplete draft. The court was required to determine the applicability of the Wills Act 1970 (WA), particularly section 34, and the burden of proof on the party asserting the validity of the document as a will. The court also had to consider the appropriate costs order under the relevant court rules.

The primary legal issue was whether the document was intended to be the deceased's will, despite it not being signed and witnessed in the required manner. The court examined the contents of the document and considered whether it embodied the testamentary intentions of the deceased. The court also discussed the onus of proof and whether it lay with the party asserting the document's validity as a will. The court further considered the relevant costs rules to determine the appropriate costs order.

The court held that the document was not intended to constitute a valid will, as it did not comply with the formalities required by law. The court found that the onus was on the party asserting the document's validity to prove that it was intended to be the deceased's will. The court also noted that the document was not a mere draft but rather a document that embodied the deceased's testamentary intentions. The court ordered that the parties bear their own costs of the proceeding.

The court further ordered that the costs of the proceeding be paid out of the estate. The court found that the document was not a valid will and therefore the estate was not subject to probate. The court held that the parties should bear their own costs of the proceeding, but that the costs should be taxed and paid out of the estate.

Orders

Orders of the court

1. Order pronouncing validity of will

2. Parties to have their costs taxed and paid out of estate

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

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Citations

Dolan v Dolan [2007] WASC 249

Most Recent Citation

Fast v Rockman [2013] VSC 18

Cases Citing This Decision

IN THE ESTATE OF ELIZABETH SEABROOKE (DECEASED) [2023] SASC 122
Citation 1 (Para 15)

…4 per Hasluck J at [59]; Dalton v Dalton unreported, Supreme Court of Western Australia, Parker J, 24 September 1997; see also Dolan v Dolan & Anor [2007] WASC 249 per Murray J at [15]-[17] applying the Briginshaw test.…
Re Holloway [2022] VSC 181
Citation 2 (Para 1)

…unsigned. [12] The Application of Kencalo; In the Estate of Buharoff (23 October 1991). [13] Rockman (n 10) [114]; quoting Dolan v Dolan [2007] WASC 249, [22].…
The Estate of Bradley Scott Lyons [2021] NSWSC 197
Citation 3 (Para 22)

…In Dolan v Dolan [2007] WASC 249, at [22], I note that Murray J put the matter this way: "... the document will be held to constitute the will of the deceased if the court is satisfied that the deceased intended its terms without more - without any alteration or reservation - to be the manner in which the property…
Tolbert v Hicklin [2020] QSC 199
Citation 4 (Para 10)

…have any involvement in Kenneth’s provision of instructions to Mr Pattison. [7] Daley v Barton: Barton v Daley [2008] QSC 322 at [7]; Dolan v Dolan [2007] WASC 249 at [59]-[60].…
Crisp v Australian Rotary Health Research Fund [2019] WASC 486
Citation 5 (Para 6)

…t must be satisfied on the balance of probabilities that the deceased intended the document to constitute the deceased's Will.[10] [10] Dolan v Dolan [2007] WASC 249 [15].…
Re Martin [2019] VSC 424
Citation 6

…[21] Re Estate of Masters (n 10) 469 (Priestley JA). [22] Hatsatouris v Hatsatouris (n 20) [59]; cf Dolan v Dolan [2007] WASC 249, [24]–[26] (Murray J). [23] Hatsatouris v Hatsatouris (n 20) [59].…
Re Black [2019] VSC 29
Citation 7 (Para 1)

…446, 449, 451 (Kirby P), 454–5 (Mahoney JA), 466–8 (Priestley JA); McCann v McCann [2013] NSWSC 78 (30 January 2013); cf Dolan v Dolan [2007] WASC 249 (29 October 2007) [26]. [7][2001] NSWCA 408 (30 November 2011) [56].…
IMO the estate of Bruce William Standish (deceased) [2018] VSC 629
Citation 8

…ner in which his or her property was to be disposed of upon his or her death’;[24] and [24]Ibid [114] quoting Dolan v Dolan [2007] WASC 249, [22]. (3)the fact that a deceased knew or was likely to have been aware of the need to execute the will but failed to do so is only one of the factual circumstances which a c…
Estate of Elzow [2018] VSC 498
Citation 9

…[10]Ibid [114] quoting Dolan v Dolan [2007] WASC 249 [22].…
Drummond v Drummond [2017] NSWSC 856
Citation 10 (Para 22)

…264. In Dolan v Dolan [2007] WASC 249, at [22], I note that Murray J put the matter this way: "... the document will be held to constitute the will of the deceased if the court is satisfied that the deceased intended its terms without more - without any alteration or reservation - to be the manner in which the pro…
Re Estate of Brown: Bell v Barley [2017] VSC 24
Citation 11 (Para 1)

…In Dolan v Dolan [2007] WASC 249, Murray J dealt with this issue, albeit in very different factual circumstances. His Honour held that in the circumstances of that case, the relevant time for the intention to be established is at the date of death:…
Re Lynch [2016] VSC 758
Citation 12

…[12][2007] WASC 249 (29 October 2007) [24]-[26] (discussing the equivalent West Australian provisions).…
Addison v Shore [2016] WASC 223
Citation 13 (Para 1)

…ropounding acceptance of the informal document ‑ to prove testamentary intention of Mark as regards the 4 October document: see Dolan v Dolan [2007] WASC 249 [15] ‑ [16]. The question of onus is significant in this trial. It is accepted that the onus falls upon Jennifer to prove her late brother's testamentary int…
Robinson v Jones [2015] VSC 222
Citation 14 (Para 1)

…alogous to the following three cases: Mitchell v Mitchell ,[25] Dolan v Dolan[26] and Deeks v Greenwood. [27] [25][2010] WASC 174 (22 July 2010). [26][2007] WASC 249 (29 October 2007). [27][2011] WASC 359 (22 December 2011).…
Elton v Public Trustee [2014] SASC 149
Citation 15 (Para 7)

…4 per Hasluck J at [59]; Dalton v Dalton unreported, Supreme Court of Western Australia, Parker J, 24 September 1997; see also Dolan v Dolan & Anor [2007] WASC 249 at [15]-[17] applying the Briginshaw test.…
Estate of Laura Angius; Angius v Angius [2013] NSWSC 1895
Citation 16

…ro [2004] WASC 111 Currell v Baldock; Estate of Currell [2012] NSWSC 705 Day v Couch [2000] NSWSC 230 Deeks v Greenwood [2011] WASC 359 Dolan v Dolan [2007] WASC 249 Estate of Gall (Deceased) [2008] SASC 349 Estate of Kevin John Hines v Hines [1999] WASC 111 Estate of Kiepas (Dec'd); Twemlow v Kiepas [2004] NSWSC…
Re Rosaro [2013] VSC 531
Citation 17

….[19] [17] Re Brooks; Permanent Trustee Co Ltd v Milton [1996] 39 NSWLR 330; Re Hines; Oswald v Hines [1999] WASC 111 (14 July 1999); Dolan v Dolan [2007] WASC 249 (29 October 2007); Hatsatouris v Hatsatouris [2001] NSWCA 408 (30 November 2001) [57]–[59]; Oreski v Ikac [2008] WASCA 220 (31 October 2008). [18] Hats…
Newman v Brinkgreve; The Estate of Floris Verzijden [2013] NSWSC 371
Citation 18 (Para 1)

…In Dolan v Dolan [2007] WASC 249, at [22], I note that Murray J put the matter this way:…
Fast v Rockman [2013] VSC 18
Citation 19 (Para 1)

…e. Mr Dolan said that when he next had the opportunity he would sign the document before a justice of the peace or some other authorised witness. [41][2007] WASC 249.…
Spencer v Spencer [2009] WASC 198
Citation 20 (Para 5)

…obate or other representation and is to the civil standard although a considerable degree of satisfaction by the court may be required: Dolan v Dolan [2007] WASC 249 at [16].…

See all citing cases →

Cases Cited

Oreski v Ikac [2007] WASC 195
Citation 1 (Para 6)

…number of the authorities at [11] ‑ [28], before following the judgment of the NSW Court of Appeal in Hatsatouris . Very recently, in Oreski v Ikac [2007] WASC 195, a case which bears no factual similarity to this, Barker J, at [105], reaffirmed the principles to be applied in considering a case under s 34. I resp…
Re Estate of Frederick Raymond Reeve Perriman (dec) [2003] WASC 191
Citation 2 (Para 6)

…That, I think, was also the view of Barker J in Re Estate of Perryman (dec) [2003] WASC 191. His Honour discussed the history of the legislation and reviewed a number of the authorities at [11] ‑ [28], before following the judgment of the NSW Court of Appeal in Hatsatouris . Very recently, in Oreski v Ikac [2007]…
Hatsatouris v Hatsatouris [2001] NSWCA 408
Citation 3 (Para 4)

…e established is provided by the decision of Powell JA, with whom Priestley and Stein JJA agreed, in the unreported case of Hatsatouris v Hatsatouris [2001] NSWCA 408 at [56], where his Honour said that the question was: … did the evidence satisfy the court that, either at the time of the subject document being bro…
The Estate of Kevin John Hines v Hines [1999] WASC 111
Citation 4 (Para 5)

…A similar approach to the section has been followed in this Court. In The Estate of Hines v Hines [1999] WASC 111, Owen J, at [22] ‑ [26], reviewed a number of the decided authorities before cautioning that the intention of the deceased was, of course, a matter of fact and it therefore followed that each case woul…
Briginshaw v Briginshaw [1938] HCA 36
Citation 5 (Para 2)

…I respectfully agree, but I note that in Briginshaw v Briginshaw (1938) 60 CLR 336, the High Court held that the standard of proof expressed as the civil standard of proof on the balance of probabilities may require a greater degree of satisfaction, depending upon the seriousness or the importance of the issue. The Court was the…
Briginshaw v Briginshaw [1938] HCA 34
Citation 6 (Para 2)

…I respectfully agree, but I note that in Briginshaw v Briginshaw (1938) 60 CLR 336, the High Court held that the standard of proof expressed as the civil standard of proof on the balance of probabilities may require a greater degree of satisfaction, depending upon the seriousness or the importance of the issue. The…

Legislation Cited

Administration Act 1903 (WA)
1 mention (from Para 7)
Wills Act 1970 (WA) 34
1 mention (from Para 2)
Wills Amendment Act 1997 (WA)
1 mention (from Para 8)