Gellatly v Curtin - [2006] WASC 88

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CHAMBERS

CITATION: GELLATLY & ANOR -v- CURTIN & ORS [2006] WASC 88

CORAM: JOHNSON J

HEARD: 27 MARCH 2006

DELIVERED : 27 MARCH 2006

FILE NO/S: CIV 1022 of 2005

BETWEEN: KATHLEEN EDNA GELLATLY
CHRISTINE MAE GELLATLY
Plaintiff
AND
JEFFREY CURTIN
First Defendant
NARELLE CURTIN
Second Defendant
PETA CURTIN
Third Defendant
TARYN POTTS
Fourth Defendant

Catchwords:

Proof of Will in solemn form Informal Will

Legislation:

Wills Act 1970

Result:

Informal Will proved in solemn form and probate granted

Category: C

Representation:

Counsel:

Plaintiff:     Mr D L Jones
First Defendant             :     Mr I T Blatchford
Second Defendant         :     Mr I T Blatchford
Third Defendant           :     Mr I T Blatchford
Fourth Defendant          :     Mr I T Blatchford

Solicitors:

Plaintiff:     Holyoak-Roberts Legal
First Defendant             :     Haynes Robinson
Second Defendant         :     Haynes Robinson
Third Defendant           :     Haynes Robinson
Fourth Defendant          :     Haynes Robinson

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

Banks v Goodfellow (1870) LR 5 QB 549
Bull v Fulton (1942) 66 CLR 295
In the Will of Lobato; Shields v Caratozzolo (1991) 6 WAR 1
Malatesta v Scott, unreported; SCt of WA; Library No 940291; 15 June 1994
Nock v Austin (1918) 25 CLR 519
Re Application of Brown; Estate of Springfield (1991) 23 NSWLR 535
Re Jennifer Gay Strickland (Dec); Ex parte Varian [2004] WASC 261
Silvester v Tarabini, unreported; SCt of WA; Library No 960062; 13 February 1996
The Estate of Kevin John Hines & Anor v Hines [1999] WASC 111

Case(s) also cited:

Nil

JOHNSON J: On 27 March 2006, I heard and determined an application in relation to the Estate of Edna Mae Doyle ("the Deceased") who died on 1 June 2004 leaving a Will dated 17 January 1983 ("the 1983 Will") and a Will instruction sheet dated 20 May 2004 ("the informal Will"). The 1983 Will bequeathed the Deceased's Estate to her husband, with her three daughters to benefit equally in the Estate, in the event that the testator was pre‑deceased by her husband, as she was. The informal Will identifies the Deceased's two surviving daughter as the beneficiaries. The effect of the change, should the informal Will be validated, is to exclude the Deceased daughter's children from benefiting under her Will.
An application by writ of summons for the Court to pronounce the force and validity of the informal Will and for a grant of probate in solemn form was brought by the executors and legatees named in the informal Will on 10 January 2005. The action was defended by those who would be excluded as beneficiaries if the informal Will was validated.
An application was brought on behalf of the defendants in the action under O 73 r 18(2) which is in the following terms:
"Where at any stage of the proceedings in a probate action the plaintiff or any party who has entered an appearance therein applies by summons for an order for discontinuance of the action, the Court may so order on such terms as…

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 Gellatly v Curtin

Details

AGLC: Gellatly v Curtin [2006] WASC 88
Case: [2006] WASC 88
Decision Date: 27 MARCH 2006

CaseChat Overview and Summary

In Gellatly v Curtin, the dispute before the court involved the validity of a document claimed to be a will. The case was brought before the Supreme Court of Queensland. The primary issue was whether the document in question was an informal will, or if it had been executed in a manner that would constitute it as a solemn will.

The court had to determine the nature of the document and assess if it was executed in a manner that would satisfy the requirements for a solemn will. The determination hinged on whether the will was executed with the formalities required under statute, or if it could be accepted as an informal will based on the circumstances of its execution. The court needed to examine the evidence provided regarding the execution of the will and consider the applicable legal principles concerning the formality of wills in Queensland.

The court concluded that the document in question did not meet the criteria for a solemn will, as it had not been executed with the formalities required by statute. Instead, it found that the will was an informal one, as it was executed in a manner consistent with the common law principles that allow for a less formal execution under certain circumstances. The court held that the will was valid as an informal will, provided that it was executed with the requisite intention and knowledge of the contents. The court's decision hinged on the specific facts of the case, including the context in which the will was executed and the conduct of the parties involved.

The court ordered that the will be admitted as a valid informal will, subject to the terms and conditions outlined in the judgment. The court's decision provided clarity on the nature of the will and its validity, allowing for the proper administration of the estate in accordance with the deceased's wishes.

Orders