Douglas v Douglas - [2017] WASC 184

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CHAMBERS

CITATION: DOUGLAS -v- DOUGLAS [2017] WASC 184

CORAM: ACTING MASTER STRK

HEARD: 29 MAY 2017

DELIVERED : 29 MAY 2017

FILE NO/S: CIV 2516 of 16

MATTER :In the matter of the estate of the late Paul James Douglas, deceased

BETWEEN: FIONA HEATHER DOUGLAS
Plaintiff
AND
FIONA HEATHER DOUGLAS as Trustee of the PJ DOUGLAS FAMILY TRUST
First Defendant
JACK EDWARD DOUGLAS
Second Defendant
MATT JAMES DOUGLAS
Third Defendant
AISHA FIONA DOUGLAS
Fourth Defendant

Catchwords:

Wills - Rectification of a will by the court - The will does not give effect to the testator's instructions - Potential partial intestacy - Turns on own facts

Legislation:

Wills Act 1970 (WA), s 50

Result:

Application granted

Category: B

Representation:

Counsel:

Plaintiff:     Mr R J Nash
First Defendant             :     In person
Second Defendant         :     In person
Third Defendant           :     In person
Fourth Defendant          :     Mr J Woodford

Solicitors:

Plaintiff:     GG Legal
First Defendant             :     In person
Second Defendant         :     In person
Third Defendant           :     In person
Fourth Defendant          :     Mr J Woodford, as Guardian ad Litem

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

Estate of Grahame David Wright [2016] NSWSC 1779
Hinds v Collins [2006] 1 Qd R 514; [2005] QSC 362
Palethorpe v The Public Trustee of Queensland [2011] QSC 335
Vescio v Bannister [2010] NSWSC 1274
ACTING MASTER STRK:
(This judgment was delivered extemporaneously on 29 May 2017 and has been edited from the transcript.)

This is the plaintiff's originating summons for orders rectifying a will pursuant to s 50 of the Wills Act 1970 (WA). Throughout these reasons, in circumstances where the parties share a common surname, I refer to the parties by their first name. There is no disrespect intended. It is for convenience only.

Background

The plaintiff, Fiona Douglas, has made an application by originating summons filed on 2 September 2016. By that application, Fiona Douglas seeks an order for the rectification of the will of her late husband on the basis that the will does not give effect to the testamentary intentions of the deceased. Fiona Douglas is the surviving spouse of Paul James Douglas (deceased), and the sole named executor of his estate under a will dated 22 August 2002.
Fiona Douglas, in her capacity as trustee of the PJ Douglas Family Trust (Trust), is also the first defendant to these proceedings. The second and third defendants to the proceedings (Jack Edward Douglas and Matt James Douglas) are the adult children of the deceased. The fourth defendant (Aisha Fiona Douglas) is the child of the deceased and Fiona Douglas, and is represented in these proceedings by Mr James Woodford, guardian ad litem. The children of the deceased would, together with Fiona Douglas, have an entitlement to a share of the estate in the event of an intestacy or partial intestacy and, on that basis, it was appropriate that they were joined and given an opportunity to be heard.
Jack Douglas and Matt Douglas oppose the application. They…

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 Douglas v Douglas

Details

AGLC: Douglas v Douglas [2017] WASC 184
Case: [2017] WASC 184
Decision Date: 29 MAY 2017

CaseChat Overview and Summary

The case before the court involved Douglas and Douglas, where the central issue was the rectification of a will to ensure it accurately reflects the deceased's intentions. The dispute arose from the will of a deceased person who had drafted a will that did not fully conform to their instructions, potentially leading to partial intestacy. The court was tasked with determining whether the will should be rectified to better reflect the deceased's wishes. The decision hinged on the unique facts of the case, examining the circumstances surrounding the creation of the will and the testator's intentions.

The primary legal issue was whether the court had the authority to rectify the will to give effect to the testator's actual instructions, particularly when the will, as drafted, did not achieve this goal. The court considered whether the evidence presented supported a finding that the will did not express the testator's true intentions and whether there was sufficient clarity in the testator's instructions to warrant rectification. The court also examined whether the rectification would lead to a more equitable distribution of the estate in line with the deceased's wishes, and whether such a step would be appropriate given the circumstances.

The court carefully reviewed the evidence and concluded that the will did not accurately reflect the testator's instructions, leading to a potential partial intestacy. The court found that the testator's intentions were clear, and the evidence provided a strong basis for rectifying the will. The court determined that rectification was warranted to avoid partial intestacy and to ensure the estate was distributed according to the deceased's wishes. Consequently, the court ordered the will to be rectified to reflect the true intentions of the deceased.

Orders