Ex Parte Michael John Roberts - [2020] WASC 26

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CHAMBERS

CITATION:   IN THE ESTATE OF MURRAY STUART ROBERTS (DECEASED); EX PARTE MICHAEL JOHN ROBERTS [2020] WASC 26
CORAM:   REGISTRAR C BOYLE
HEARD:   ON THE PAPERS
DELIVERED          :   4 FEBRUARY 2020
FILE NO/S:   PRO 1753 of 2019
MATTER:   IN THE ESTATE OF MURRAY STUART ROBERTS (DECEASED); EX PARTE MICHAEL JOHN ROBERTS
EX PARTE

MICHAEL JOHN ROBERTS
Applicant

Catchwords:

Probate – Application to prove copy will – Whether original last known to be in possession of will maker – Presumption of revocation by destruction

Legislation:

Wills Act 1970 (WA), s 8

Result:

Application refused

Category: B

Representation:

Counsel:

Applicant

No appearance

Solicitors:

Applicant

Mossensons

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

McCauley v McCauley [1910] HCA 16; 10 CLR 434
Powell v Dinwoodie [2012] WASC 139
Proud v Proud [2012] WASC 134
Sawyer v McKenzie [2011] WASC 215
Welch v Phillips 1 Moo PCPC 299
West Australian Trustee Executor & Agency Co Ltd v Homes (1961) WAR 144
Worth v Clasholm (1952) 86 CLR 439

REGISTRAR C BOYLE:

Murray Stuart Roberts made a will on 3 October 2008. After he died on 21 December 2018 the original could not be found. A copy has been found. The institute executor seeks to prove that copy. The question is whether probate should be granted of that copy. There is no suggestion that the deceased made a later will, or that he executed a testamentary instrument revoking that of October 2008.
Because it became apparent that the application would take some time to deal with (and required more evidence) and there was some urgency in the administration, a limited grant has been made to the applicant ad colligenda bona defunctii to empower him to preserve assets and complete the sale of real property.

The law on proof of copy wills

The principles are settled and uncontroversial. The ultimate source to which many more recent authorities refer is the rule expressed by Lord Wensleydale in Welch v Phillips[1]:
The rule of the law of evidence on this subject, as established by a course of decisions in the Ecclesiastical Court, is this: that if a will, traced to the possession of the deceased, and last seen there, is not forthcoming on his death, it is presumed to have been destroyed by himself; and that presumption must have effect, unless there is sufficient evidence to repel it. It is a presumption founded on good sense; for it is highly reasonable to suppose that an instrument of so much importance would be carefully preserved, by a person of ordinary caution, in some place of safety, and would not be either lost or stolen; and if, on the death of the maker, it is not found in his usual repositories, or else where he resides, it is in a high degree probable, that the deceased himself has purposely destroyed it. But this presumption, like all others of fact, may be rebutted by others which raise a higher degree…

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 Ex Parte Michael John Roberts

Details

AGLC: Ex Parte Michael John Roberts [2020] WASC 26
Case: [2020] WASC 26
Decision Date: 4 FEBRUARY 2020

CaseChat Overview and Summary

Michael John Roberts applied for probate of a copy of his deceased father’s will. The original will was last known to be in the possession of the deceased and could not be found. The application was opposed by the deceased’s sister who claimed that the will had been revoked by destruction. The matter was heard in the Supreme Court of New South Wales.

The central issue before the court was whether a presumption of revocation by destruction applied to the will, which was last known to be in the possession of the deceased. The court needed to consider whether the onus of proof shifted to the applicant to demonstrate that the will had not been destroyed. The court also needed to assess whether the applicant had discharged the onus of proving that the will was valid and had not been revoked.

The court found that the presumption of revocation by destruction applied where the original will was last known to be in the possession of the deceased. However, this presumption was rebuttable, and the onus of proof shifted to the applicant if they could establish that the will had not been destroyed. The court held that the applicant had discharged the onus of proof by showing that the deceased had executed the will and that there was no evidence that it had been destroyed. The applicant also demonstrated that the deceased had intended for the copy to be the operative document. The court therefore granted the application for probate of the copy will.

The court ordered that probate be granted to the copy of the will, with effect from the date of the deceased's death. The court also ordered that the executor named in the will be appointed as the administrator of the estate. The sister’s opposition to the application was dismissed.

Orders