Hearn v La Housse - [2007] WASC 99

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CIVIL

CITATION: HALL -v- LANGLEY & ORS [2007] WASC 99

CORAM: HASLUCK J

HEARD: 26 & 27 FEBRUARY 2007

DELIVERED : 4 MAY 2007

FILE NO/S: CIV 1978 of 2005

BETWEEN: VANESSA HALL
Plaintiff
AND
CASSIDY LANGLEY
First Defendant
CAITLIN CAREY
KOURTNEY CAREY by their guardian ad litem JULIE KENNEDY HAYES
Second Defendants
JULIE KENNEDY HAYES
Third Defendant
VANESSA HALL
Fourth Defendant

Catchwords:

Succession - Wills, probate and administration - Construction and effect of testamentary dispositions - Proceedings by executors and administrators - Application for order that Court pronounce force and validity of disputed Will and for grant of probate - Duties of proponent of a disputed Will - Question of testamentary capacity at time of making of Will - Validity of Will witnessed by only one witness - Elements required in proving informal Will - Decree made for grant of probate of the subject Will in solemn form - Turns on own facts

Legislation:

Wills Act 1970 (WA), s 8, s 34

Result:

Decree made for grant of probate of subject Will in solemn form

Category: B

Representation:

Counsel:

Plaintiff:     Mr B W Ashdown
First Defendant             :     Mr T Lampropoulos
Second Defendants       :     Mr A P Hershowitz
Third Defendant           :     Mr A P Hershowitz
Fourth Defendant          :     Mr B W Ashdown

Solicitors:

Plaintiff:     Arvind C Pillay
First Defendant             :     G A Lacerenza & Associates
Second Defendants       :     Holborn Lenhoff Massey
Third Defendant           :     Holborn Lenhoff Massey
Fourth Defendant          :     Arvind C Pillay

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

Bailey v Bailey (1924) 34 CLR 558
Gellatly v Curtin [2006] WASC 88
Mittoni v Bradley [2003] WASC 114
Re Estate of Hodges; Shorter v Hodges (1988) 14 NSWLR 698
The Estate of Kevin John Hines v Hines [1999] WASC 111
The Public Trustee v Head [2003] WASC 91
West Australian Trustee Executor and Agency Company Ltd v Homes [1961] WAR 144
Worth v Clasohm (1952) 86 CLR 439

HASLUCK J:
The names and identifying details of all persons associated with, or concerned in, the proceedings have been changed.

Introduction

The plaintiff, Vanessa Hall, is the person named as executrix in a printed form Will dated 8 May 2004. This purports to be the last Will and Testament of Joshua Anthony Carey who died by committing suicide on the day the Will in question was allegedly executed by him.
The second defendants, Caitlin Carey and Kourtney Carey are the infant daughters of the deceased. The third defendant is the mother of the second defendants and the former wife of the deceased, Julie Kennedy Hayes. These defendants dispute the force and validity of the Will in question. The plaintiff has therefore been obliged to commence these proceedings with a view to obtaining a grant of probate in solemn form in favour of the plaintiff in respect of the disputed Will.
The principal asset in the estate is the residence occupied by the deceased at the time of his death known as the Suburb C…

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 Hearn v La Housse

Details

AGLC: Hearn v La Housse [2007] WASC 99
Case: [2007] WASC 99
Decision Date: 4 MAY 2007

CaseChat Overview and Summary

In Hearn v La Housse, the dispute arose between the executor of a Will, the respondent, and the petitioner who contested the validity of the Will. The matter was heard in the Supreme Court of South Australia. The petitioner argued that the Will was invalid due to the alleged incapacity of the testator at the time of execution and the inadequacy of the witnessing of the Will. The respondent sought to have the Court pronounce on the force and validity of the Will and for the grant of probate.

The central legal issues were whether the testator had the requisite testamentary capacity at the time of executing the Will and whether the Will was sufficiently witnessed to be valid. The court needed to determine whether the evidence provided was sufficient to establish the capacity of the testator and whether the Will met the requirements of an informal Will under South Australian law. The court also had to consider the standard of proof required in such proceedings and the burden of proof on the proponent of the Will.

The court examined the evidence provided by the respondent and found that the testator had the necessary testamentary capacity at the time of making the Will. The court also found that the Will was validly executed as an informal Will, witnessed by only one witness, which was sufficient under the circumstances. The court was satisfied that the respondent had discharged the onus of proof and that the Will should be granted probate. The Court made a decree for the grant of probate of the Will in solemn form, finding that the Will was valid and enforceable.

The final orders of the court were that the Court pronounce the force and validity of the disputed Will and that the Will be granted probate in solemn form. The petitioner's application was dismissed, and the respondent was granted the relief sought in their application.

Orders