FORDE -v- LEE [2013] WASC 328
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2013] WASC 328 | |
| Case No: | CIV:2860/2009 | 26 - 29 AUGUST 2013 | |
| Coram: | McKECHNIE J | 29/08/13 | |
| 36 | Judgment Part: | 1 of 1 | |
| Result: | Plaintiffs' claim succeeds Informal Will valid Grant of probate to executors | ||
| B | |||
| PDF Version |
| Parties: | SHIRLEY JUNE FORDE MARIE DIANE POPA as Executors of the Will of BRIAN ERNEST JOHN LEE JOHN CHARLES LEE JANET PATRICIA LEE RICHARD LEE SUZANNE DYSON MICHELLE LEE |
Catchwords: | Wills Will not formally executed Whether expressed testator's intention Whether informal Will Testamentary capacity Whether testator had capacity to execute Will Turns on own facts No new principles |
Legislation: | Wills Act 1997 (WA), s 34 |
Case References: | Nil |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
- IN CIVIL
- MARIE DIANE POPA as Executors of the Will of BRIAN ERNEST JOHN LEE
Plaintiffs
AND
JOHN CHARLES LEE
First Defendant
JANET PATRICIA LEE
Second Defendant
RICHARD LEE
Third Defendant
SUZANNE DYSON
Fourth Defendant
MICHELLE LEE
Fifth Defendant
Catchwords:
Wills - Will not formally executed - Whether expressed testator's intention - Whether informal Will - Testamentary capacity - Whether testator had capacity to execute Will - Turns on own facts - No new principles
Legislation:
Wills Act 1997 (WA), s 34
Result:
Plaintiffs' claim succeeds
Informal Will valid
Grant of probate to executors
Category: B
Representation:
Counsel:
Plaintiffs : Mr R J Nash
First Defendant : In person
Second Defendant : No appearance
Third Defendant : No appearance
Fourth Defendant : No appearance
Fifth Defendant : No appearance
Solicitors:
Plaintiffs : O'Connor Partners
First Defendant : In person
Second Defendant : No appearance
Third Defendant : No appearance
Fourth Defendant : No appearance
Fifth Defendant : No appearance
Case(s) referred to in judgment(s):
- McKECHNIE J:
What this case is about
1 Mr Brian Lee was 80 when he died on 24 June 2007. As often happens in these cases many parties have the same surname so I will use first names for the Lee family hereafter. He thought he had left a valid Will. Whether it is valid is what this case is all about.
2 His marriage to Patricia was dissolved in 1967. He had not treated his first children well, having little contact after the split with his first wife.
3 He married Dorothy Pearl (Pearl) in 1976 and they lived together until her death in 1993. Brian did not remarry.
4 Brian had six children with Patricia. Later he became step-father to Pearl's three children although he did not like the term, referring to the girls as his children.
5 The document he left was not executed as it should have been under the Wills Act 1970 (WA) although it was witnessed. The signature has been proved to…
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- AGLC
- FORDE -v- LEE [2013] WASC 328
- Case
- [2013] WASC 328
- Decision Date
CaseChat Overview and Summary
The court found that the document did constitute an informal Will as it contained expressions of the testator's testamentary intention. The court held that the test for determining whether a Will is informal is whether the document as a whole shows an intention to make a Will and that intention must be gathered from the document itself. The court also held that the testator had the capacity to execute a Will as there was no evidence to suggest otherwise. The court found that the issue of testamentary capacity turns on its own facts and there are no new principles to be applied in this case.
The court ordered that the plaintiffs' claim succeeds and that the informal Will is valid. The court also ordered that probate be granted to the executors named in the Will. The defendants' objections to the grant of probate were dismissed.
Orders
Orders of the court
Plaintiffs' claim succeeds
Informal Will valid
Grant of probate to executors
Background
Background to the litigation
Full text does not contain this section.
Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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