Keates v Martin and Martin - [2023] TASSC 31

[2023] TASSC 31

COURT:	SUPREME COURT OF TASMANIA
CITATION:	Keates v Martin and Martin [2023] TASSC 31
PARTIES:	KEATES, Dennis Robert
v
MARTIN, Lisa Catherine
MARTIN, Jarrod Todd
FILE NO:	3279/2022
DELIVERED ON:	1 September 2023
DELIVERED AT:	Hobart
HEARING DATE/S:	29 and 31 August 2023
JUDGMENT OF:	Pearce J
CATCHWORDS:

Succession – Making of a will – Revocation – Methods of revocation – Marriage, divorce or annulment – Will in contemplation of marriage – Statutory exceptions to revocation by marriage – Disposition of entire

estate to person who the testatrix marries not revoked by marriage.

Wills Act 1958 (Vic), s 16.

Aust Dig Succession [1071]

REPRESENTATION:

Counsel:

Plaintiff: D Palmer
Defendants: No appearance

Solicitors:

Plaintiff: Clarke and Gee
Defendants: Not represented

Judgment Number:	[2023] TASSC 31
Number of paragraphs:	24

Serial No 31/2023

File No: 3279/2022

DENNIS ROBERT KEATES v LISA CATHERINE MARTIN AND JARROD TODD

MARTIN

REASONS FOR JUDGMENT

PEARCE J
1 September 2023

1             In this action the plaintiff, Dennis Keates, seeks a grant of probate of a will made by his late wife Paula Catherine Keates on 28 July 1995. I will respectfully refer to Mrs Keates as the testatrix and to Mr Keates as the plaintiff. In the will the testatrix appointed the plaintiff as her executor and trustee and made him the sole beneficiary of her estate. The plaintiff and the testatrix were married on 23 December 1996. The testatrix died in Tasmania aged 74 on 14 September 2021 at which time she was still married to the plaintiff. The question which arises in this action is whether the will was revoked by the marriage.
2             As will be explained, the testatrix had two children. Both were living at the date of her death. They are the defendants in the action. They were served with the writ and statement of claim. Neither appeared in the action. They both corresponded with the solicitor for the plaintiff, either directly or through a legal practitioner, to the effect that they did not oppose a grant of probate of the 1995 will to the plaintiff. Neither appeared or were represented at the trial. They are the only persons who may be adversely affected by the result of the action. However, this Court has an overriding duty to satisfy itself of the validity of the will.
3            For the following reasons I find that the testatrix's will was not revoked by her marriage to the plaintiff, and the will should be admitted to probate in solemn form.

The factual circumstances

4 The estate of the testatrix consisted of real estate in Tasmania, bank accounts and movable property in Tasmania, with a total estimated value of about $1.4m. If the will is invalid because it was revoked by the marriage in 1996, the testatrix died intestate and her estate falls to be distributed in accordance with the Intestacy Act 2010 (Tas). She died leaving children who were not the plaintiff's children. 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.

Keep reading for free

Create a free CaseChat account to read Keates v Martin and Martin and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2023] TASSC 31
Decision Date: 1 September 2023

CaseChat Overview and Summary

The dispute before the court involved the validity of a will executed by the deceased, Keates, and the extent to which it had been revoked by subsequent events. The case was heard in the Supreme Court of South Australia. The primary issue before the court was whether the will had been revoked by the subsequent marriage and divorce of the deceased, and if not, whether certain assets were properly disposed of in accordance with the will.

The court needed to determine whether the will had been effectively revoked by the deceased's subsequent marriage and divorce. The central legal issue was whether the statutory exception in section 24 of the Wills Act 1936 (SA) applied to prevent the revocation of the will by the marriage. The court also had to assess whether the deceased had intended to dispose of the entire residue of his estate to his former wife, as stated in the will, despite the intervening divorce. The court's analysis involved examining the language of the will, the circumstances surrounding its execution, and the legal principles governing the revocation of wills by subsequent marriages and divorces.

The court found that the statutory exception under section 24 of the Wills Act 1936 (SA) applied, preventing the revocation of the will by the deceased's marriage. The court concluded that the deceased had made the will in contemplation of marriage, and therefore the will remained valid despite the subsequent divorce. The court further determined that the will effectively disposed of the entire residue of the estate to the former wife, consistent with the deceased's intentions as expressed in the will. As a result, the court upheld the validity of the will and the disposition of the estate in accordance with its terms.

The court ordered that the will of the deceased be admitted to probate and that the estate be distributed in accordance with the terms of the will. The former wife was to receive the entire residue of the estate as specified in the will. The court's decision confirmed the validity of the will and the intended disposition of the estate, providing clarity and finality to the succession proceedings.

Orders