Howe v Farrell - [2024] WASC 170

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CHAMBERS

CITATION:   HOWE -v- FARRELL [2024] WASC 170
CORAM:   HOWARD J
HEARD:   2 MAY 2024
DELIVERED          :   2 MAY 2024
PUBLISHED           :   14 MAY 2024
FILE NO/S:   CIV 1658 of 2023
BETWEEN:   PETER JOHN HOWE
Plaintiff

AND

HELENE ANN FARRELL
Defendant

Catchwords:

Application to prove will in solemn form - Following Deed of Settlement and Compromise and Supplementary Deed plaintiff given leave to proceed on an undefended basis - Where original Will cannot be located and relying on photocopy of the Will - Will proved in solemn form - Direction to grant probate of the copy of the Will

Legislation:

Non-Contentious Probate Rules 1967 (WA)

Result:

Application allowed

Category: B

Representation:

Counsel:

Plaintiff	:	Mr P J Hannan
Defendant	:	Ms G K Lee

Solicitors:

Plaintiff	:	Vibe Legal Pty Ltd
Defendant	:	Rattigan & Associates

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

Austress v Marlin [2002] NSWSC 958
Larussa v Anna Carr as administratrix of the estate of The Late Giuseppe Larussa [2018] WASCA 127
Nurse v Morfitt [2024] WASC 96

HOWARD J:

(These reasons were delivered ex temporaneously and have been lightly edited from the transcript.)

By a Writ endorsed with a statement of claim dated 21 June 2023, the plaintiff sought the following orders:
1.a declaration that the 2008 Will is valid and effective and is the last will of the late Adrian Robert HOWE;
2.a decree pronouncing for the force and validity of the 2008 Will propounded by the Plaintiff;
3.a decree admitting the Photocopy 2008 Will to proof;
4.a decree of probate of the 2008 Will in solemn form of law be granted to the Plaintiff;
5.the grant of probate referred to in prayer (4) above be limited until the original of the 2008 Will or a more authentic copy thereof is brought into the Probate Registry of this Court;
6.such further or other relief as the Court thinks fit; and
7.costs.
The defendant filed a defence and counterclaim dated 31 August 2023. By the counterclaim, the defendant claimed:
1.a declaration that the 2008 Will is revoked and ineffective as the last Will of the late Adrian Robert HOWE;
2.a decree that the late Adrian Robert Howe died intestate;
3.a decree of probate on the basis of intestacy be granted to the Defendant; and
4.Such further or other relief as the Court thinks fit.
On 29 August 2023, the parties signed a Deed of Settlement and Compromise.
On 6 February 2024, the parties executed a Supplementary Deed.
As a result of those Deeds, by consent, Master Russell on 8 February 2024 made the following Orders:
1.the defendant has leave to withdraw her defence and discontinue her counterclaim in this action, based on the plaintiff obtaining a grant of probate, and upon these orders being made the defence shall be treated as withdrawn and the counterclaim discontinued;
2.the plaintiff has leave to set the matter down for trial on an unopposed basis pursuant to Order 73 rule 19 of…

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 Howe v Farrell

Details

AGLC: Howe v Farrell [2024] WASC 170
Case: [2024] WASC 170
Decision Date: 14 MAY 2024

CaseChat Overview and Summary

The case of Howe v Farrell involved the application of a plaintiff seeking to prove a will in solemn form, following a Deed of Settlement and Compromise and a Supplementary Deed. The plaintiff, Howe, applied for leave to proceed on an undefended basis as the original will could not be located, only a photocopy was available. The defendant, Farrell, did not contest the application, leading to the matter being heard on an undefended basis.

The primary legal issue before the court was whether the plaintiff could prove the will in solemn form when only a photocopy of the will was available, as the original could not be located. The court had to determine the validity of the photocopy and whether it was sufficient to proceed with the probate of the will. Additionally, the court needed to consider whether the absence of the original will would prevent the granting of probate.

The court found that the photocopy of the will was sufficiently clear and legible to be used for the purpose of proving the will in solemn form. The court accepted that the circumstances leading to the unavailability of the original will were beyond the control of the plaintiff. Given that the defendant did not contest the application, the court directed that the plaintiff be granted probate of the copy of the will. The reasoning was based on the principle that the essence of the will could still be ascertained from the photocopy, and the absence of the original did not impede the process of granting probate.

Orders