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Fisher v Kay

Fisher v Kay

Case [2010] WASCA 160 5 August 2010

Presumption of Due Execution

Admissibility of Evidence

Appeal

Succession Law

Type to search within this case.

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

TITLE OF COURT : THE COURT OF APPEAL (WA)

CITATION: FISHER -v- KAY [2010] WASCA 160

CORAM: OWEN JA
BUSS JA
MURPHY JA

HEARD: 8 APRIL 2010

DELIVERED : 5 AUGUST 2010

FILE NO/S: CACV 93 of 2009

BETWEEN: DAVID JOHN FISHER
Appellant
AND
RAELENE ISOBEL KAY
First Respondent
JOHN MICHAEL KAY
Second Respondent

ON APPEAL FROM:
Jurisdiction              :  SUPREME COURT OF WESTERN AUSTRALIA
Coram  :SIMMONDS J
Citation  :KAY -v- FISHER [2009] WASC 193
File No  :CIV 1446 of 2007

Catchwords:

Wills - Probate - Appeal against decision to grant probate - Presumption of due execution - Whether testator knew and approved contents of will - Questions concerning manner pieces of land were described in the will - Trial judge's decision made largely on assessment of reliability of executor's evidence - Insufficient grounds for appellate interference - Relevance and admissibility of pretestamentary statements

Legislation:

Nil

Result:

Appeal dismissed

Category: B

Representation:

Counsel:

Appellant:     Dr P R MacMillan
First Respondent           :     Mr J C Curthoys
Second Respondent      :     Mr B H Taylor

Solicitors:

Appellant:     O'Connor Partners Commercial Lawyers
First Respondent           :     Kott Gunning
Second Respondent      :     Talbot Olivier

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

Brett v Rees [2009] WASCA 159
Fox v Percy [2003] HCA 22; (2003) 214 CLR 118
In re Resch's Wills Trusts [1967] 2 NSWR 706; [1969] 1 AC 514
In the Estate of Kavanagh (Deceased) [1977] 16 SASR 342
In the Goods of Gilliland [1940] NI 125
Johnson v Lyford (1868) LR 1 P & D 546
Lutheran Church of Australia South Australia District Inc v Farmers' Co‑operative Executors & Trustees Ltd [1970] HCA 12; (1970) 121 CLR 628
Re Gillson; Ellis v Leader [1949] Ch 99
Re Gramp, Deceased; Finck v Gramp [1952] SASR 12
Re Luck (deceased) [1977] WAR 148
Re Smith; Equity Trustees Executors & Agency Co Ltd v Smith [1939] VLR 213
Sugden v Lord St Leonards (1876) 1 PD 154

OWEN JA: The deceased, Arthur John Fisher (also referred to in some evidence as Jack Fisher), made two wills. One was drafted in 1983, the other in 2005. In the 2005 will he left a certain property to the second respondent. As co‑executor, the first respondent sought to have the 2005 will propounded. The deceased's son, the appellant, was unaware of the 2005 will and did not admit the due execution or knowledge or approval of the will. This is an appeal against the decision to grant probate of the 2005 will to the first respondent.

Background

The deceased was born on 20 May 1912. At the date of his death, on 15 October 2005, the deceased was the sole registered proprietor of three properties the subject of three Certificates of Title in Bindoon.
The first property includes two pieces of land together described as 'portion of Swan Location 1285 including Lot 2 on diagram 15522', and being the whole land shown in Certificate of Title Volume 1138 Folio…

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 Fisher v Kay

Details

AGLC: Fisher v Kay [2010] WASCA 160
Case: [2010] WASCA 160
Decision Date: 5 AUGUST 2010

CaseChat Overview and Summary

In the matter of Fisher v Kay, the dispute centred around the validity of a will and the decision to grant probate. The case was heard and determined in the Supreme Court of Victoria. The appellant, Fisher, sought to appeal against the decision of the trial judge to grant probate to the will of the deceased, Kay. The primary contention was whether the deceased knew and approved the contents of the will, specifically focusing on how certain pieces of land were described within the document. The reliability of the executor's evidence played a critical role in the trial judge's decision, and Fisher argued that there were sufficient grounds for the appellate court to overturn this decision.

The legal issues before the court involved the presumption of due execution of the will and the requirement to establish that the deceased had knowledge of and assent to the will's contents. A key point of contention was whether the trial judge had correctly assessed the reliability of the executor's evidence and whether there were discrepancies in how the land was described in the will that could undermine its validity. Additionally, the court had to consider the relevance and admissibility of pre-testamentary statements made by the deceased regarding the contents of the will.

The court found that the trial judge's assessment of the executor's evidence was thorough and that there were no errors in the judge's evaluation. The descriptions of the land, though questioned, did not reach a level of ambiguity or error that would invalidate the will. The pre-testamentary statements were deemed relevant and properly admitted as they supported the testator's knowledge and approval of the will's contents. The appellate court concluded that there were insufficient grounds for interference with the trial judge's decision, affirming the grant of probate.

The final orders of the court were to dismiss the appeal, upholding the trial judge's decision to grant probate to the will of the deceased, Kay. The court's reasoning underscored the importance of the reliability of executor's evidence and the presumption of due execution in probate matters.

Orders