FORDE -v- LEE [2013] WASC 328

Jurisdiction:	SUPREME COURT OF WESTERN AUSTRALIA	Citation No:	[2013] WASC 328
Case No:	CIV:2860/2009	Heard:	26 - 29 AUGUST 2013
Coram:	McKECHNIE J	Delivered:	29/08/13
No of pages:	36	Judgment Part:	1 of 1
Result:	Plaintiffs' claim succeeds Informal Will valid Grant of probate to executors
Category:	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

CITATION : FORDE -v- LEE [2013] WASC 328 CORAM : McKECHNIE J HEARD : 26 - 29 AUGUST 2013 DELIVERED : 29 AUGUST 2013 FILE NO/S : CIV 2860 of 2009 BETWEEN : SHIRLEY JUNE FORDE

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…

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 Forde v Lee

Details

AGLC: FORDE -v- LEE [2013] WASC 328
Case: [2013] WASC 328
Decision Date: 29 AUGUST 2013

CaseChat Overview and Summary

The plaintiffs, the daughters of the deceased, sought to have an informal document declared as their father's valid Will. The deceased's Will was not formally executed and the defendants, the deceased's former wife and children from a previous relationship, argued that it did not represent the testator's intention and that the testator lacked the capacity to execute a Will. The court was required to determine whether the document constituted an informal Will and if the testator had the testamentary capacity to execute it.

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

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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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