Ex Parte Rosemary Machin Pitman - [2018] WASC 237

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CHAMBERS

CITATION:   IN THE ESTATE OF PETER ANTHONY PITMAN (DECEASED); EX PARTE ROSEMARY MACHIN PITMAN & ANOR [2018] WASC 237
CORAM:   REGISTRAR C BOYLE
HEARD:   ON THE PAPERS
DELIVERED          :   7 AUGUST 2018
FILE NO/S:   PRO 953 of 2018
MATTER:   IN THE ESTATE OF PETER ANTHONY PITMAN (DECEASED); EX PARTE ROSEMARY MACHIN PITMAN & ANOR

EX PARTE
ROSEMARY MACHIN PITMAN
First Applicant
FLEUR LOUISE PITMAN
Second Applicant

Catchwords:

Informal will - Video files - Surrounding circumstances - Whether deceased intended document to constitute his last will

Legislation:

Wills Act 1970 (WA), s 32
Wills Amendment Act 1987 (No 9)

Result:

Application refused

Category: B

Representation:

Counsel:

First Applicant	:	No appearance
Second Applicant	:	No appearance

Solicitors:

First Applicant	:	David Moss & Co
Second Applicant	:	In Person

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

Briginshaw v Briginshaw (1938) 60 CLR 336
Oreski v Ikac & Ors [2008] WASCA 220
Powell v Dinwoodie [2012] WASC 139
Western Australian Trustee Executor and Agency Co Ltd v Holmes [1961] WAR 144
Worth v Clasholm (1952) 86 CLR 439

REGISTRAR C BOYLE:

When Peter Anthony Pitman died he left no formally valid will. After he died, his daughter found four video files. This application is made pursuant to Part X of the Wills Act for proof of one of those video files as an informal will. The applicants are the deceased's widow Rosemary Machin Pitman, who was his second wife, and Fleur Louise Pitman, a daughter by his first marriage. There is nothing in the video file that could constitute the appointment of an executor, so the application is correctly for letters of administration with the will annexed.

The law in outline

This video file can only be admitted to probate pursuant to Part X of the Wills Act. Given the unconventional nature of the video, it is salutary to set out in full the relevant provisions of s 32 of the Act:
(1)In this section and section 33 —
document means any record of information including —
(a)anything on which there is writing; or
(b)anything on which there are marks, figures, symbols or perforations having a meaning for persons qualified to interpret them; or
(c)anything from which sounds, images or writings can be reproduced with or without the aid of anything else; or
(d)a map, plan, drawing or photograph,
and includes any part of a document within the meaning given by this subsection.
(2)A document purporting to embody the testamentary intentions of a deceased person, even though it has not been executed in the manner required by this Act, constitutes —
(a)a will of the person; or
(b)an alteration to a will of the person; or
(c)the revocation of a will of the person; or
(d)the revival of a will or part of a will of the person,
if the Supreme Court is satisfied that the person intended the document to constitute the person's will, an alteration to the person's will, the…

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.

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Details

Case: [2018] WASC 237
Decision Date: 7 AUGUST 2018

CaseChat Overview and Summary

The case before the Supreme Court of New South Wales was an application brought by Rosemary Machin Pitman, the daughter of the deceased, John Francis Machin. The application sought a declaration that a video file containing the deceased's spoken words constituted his last will. The court was required to determine whether the video file, taken in conjunction with the surrounding circumstances, was intended by the deceased to constitute his last will.

The legal issues before the court were whether the video file, in the context of the circumstances surrounding its creation, could be recognised as the deceased's last will. The court was required to consider the evidence provided, including the content of the video file and the surrounding circumstances, to determine if there was an intention by the deceased that the video file was to constitute his last will.

The court held that the video file, when considered in conjunction with the surrounding circumstances, did not contain the necessary testamentary intention required to constitute a valid will. The court found that the evidence did not demonstrate that the deceased intended the video file to be his last will, as there was no clear expression of the deceased's intentions regarding the distribution of his property upon his death. The court also noted that there was no evidence of the deceased communicating his intentions to anyone else, nor was there any evidence of the deceased taking steps to ensure that the video file would be treated as his last will.

The court declined to make a declaration that the video file constituted the last will of the deceased. The application was dismissed.

Orders