Lamond v Sheed - [2011] WASC 349

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CHAMBERS

CITATION: LAMOND -v- SHEED [2011] WASC 349

CORAM: EM HEENAN J

HEARD: 7 NOVEMBER 2011

DELIVERED : 7 NOVEMBER 2011

PUBLISHED : 14 DECEMBER 2011

FILE NO/S: PRO 3472 of 2010

MATTER :The Estate of ANTHONY JOHN SHEED late of 9 Jervis Way, Sorrento in the State of Western Australia, and of Green House No 30, Sukajadi Central, Indonesia, Sub-Sea Engineer, Deceased

BETWEEN: DIANE HELEN LAMOND
First Applying Executor
PETER BARRY LAMOND
Second Applying Executor
AND
GEOFFREY SHEED
Interested Party

Catchwords:

Appeal - Refusal by Registrar to grant probate in common form - Issue over whether will revoked by subsequent divorce - Wills Act 1970 (WA), s 14A(2) - Whether will or circumstances established that will should not be revoked by divorce - Possible intestacy - No notice given to persons entitled to distribution upon an intestacy - Appeal adjourned for notice to be given to such parties

Legislation:

Wills Act 1970 (WA) s 14A(2)

Result:

Adjourned for notice to be given to persons entitled upon an intestacy

Category: B

Representation:

Counsel:

First Applying Executor     :    Mr P R MacMillan
Second Applying Executor :     Mr P R MacMillan
Interested Party     :     Ms V Kafentzis

Solicitors:

First Applying Executor     :    Chris Baker & Associates
Second Applying Executor :     Chris Baker & Associates
Interested Party     :     Stoddart & Co

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

Nil

EM HEENAN J: The court is sitting to hear an appeal from a decision of Registrar C Boyle sitting as Probate Registrar given on 1 July 2011, in which the learned Registrar refused to make a grant of probate in common form of an alleged will of Anthony John Sheed (deceased). The application for probate of that will is made by Diane Helen Lamond and Peter Barry Lamond, a sister and brother‑in‑law of the deceased and the two executors named in the alleged will. They are the appellants from the decision of the Registrar.
The background is that Anthony John Sheed died in Batam in Indonesia on 21 June 2010. He had been born on 4 January 1957. On the date of his death he was unmarried, having been divorced from his former wife, Sandra Cindy Sheed, by an order of the Family Court which took effect on 17 July 2009, that is, some two months after the will being propounded had been made.
According to the evidence before the Registrar, the deceased left no children. The contentious question addressed by the Registrar is whether or not the will of 18 May 2009 had or had not been revoked by the subsequent divorce. This involved an application to the facts of s 14A of the Wills Act1970 (WA), introduced in 2007, which provided, for the first time, that subsequent divorce in certain circumstances will revoke a will.
The relevant provision is s 14A(2). It provides that a will is revoked by the end of the testator's marriage except where (a) a contrary intention appears in the will, or (b) there is other evidence establishing such an intention. There is nothing on the face of this will which is being propounded to indicate that a divorce was contemplated or in train and, accordingly, there is no basis to conclude that a contrary intention appeared in the will such that it should survive the end of the testator's marriage pursuant to s 14A(2)(a). However, there is a quantity of evidence on affidavit which was before the Registrar to the effect that there were other grounds from which an inference might be drawn to establish such an intention.
The other evidence, which it is unnecessary to relate in full on this occasion, is to the effect that the will was prepared by the solicitors who were handling the testator's divorce proceedings; the deceased had been advised to make a new will because of divorce proceedings; the deceased himself had expressed a wish that his former wife should not participate in the distribution of his estate; and other like matters.
The learned Registrar took the view, not without reason, that this evidence was inconclusive and did not establish to a requisite degree that it was the intention of the deceased that the will was not to be revoked by the divorce. The Registrar's decision, in general terms, was that the evidence supported a view that no real attention had been given to the question of whether or not the will should survive the divorce and that that question was not addressed specifically or otherwise by the deceased or his advisers. The Registrar concluded that the evidence, such as it was, went no further than establishing that if the crucial question had been addressed it is likely that the deceased would have expressed an intention that the will should stand notwithstanding any divorce.
It is that decision which the present appellants seek to have set aside and reviewed by this appeal. I am satisfied that a right of appeal exists, that although this appeal was not instituted strictly within the time specified, the delay has been adequately explained, and that an extension of time to appeal should be granted. However, there are impediments to dealing with the appeal at the present.
In the course of the application for the grant of probate in common form a requisition was raised by a Registrar requiring the applicants to depose to the persons who would benefit in the event of an intestacy, and for the applicants to give notice to those persons and if possible to obtain their consent to the application being made. A subsequent affidavit was filed identifying two other persons as the sister and brother of the deceased, Lynley Margaret Tweedie and Donald William Sheed. However, no evidence was produced that either had been notified of the application and certainly no consent from either of them to the grant being sought has been obtained.
Time passed. There was further correspondence with the court from the solicitors for the applicants. By a subsequent requisition, the Registrar referred to the outstanding requisition relating to persons who would benefit from an intestacy and noted that it had not been satisfied. More time passed without that requisition being addressed. Ultimately the Registrar made the decision presently under appeal. That is a decision which, by its effect, rendered the question of notice to those persons as no longer having any practical or immediate significance.
However, that situation changed with the institution of this appeal. This appeal, if successful, could lead to a grant of probate of the will without notice to those other persons. It is evident from informal correspondence to the court from two persons, Donald Sheed and Janine Haigh, a brother and sister of the deceased, who may be entitled to distribution upon intestacy, that they are opposed to a grant of probate. Although their correspondence is not evidence, and their assertions do not constitute proof, the correspondence must be acknowledged, and it is enough to put the court on notice that there may be persons with rights to object to a grant of probate who are aggrieved at the prospect of a grant of probate of this will and who have not had proper notice of these proceedings.
At this hearing today other counsel sought leave to appear for a Mr Geoffrey Sheed, another brother of the deceased not named in the applicants' affidavit but a beneficiary named in the will propounded. Counsel for Mr Geoffrey Sheed indicated that she had instructions that he was opposed in some way to a grant being made to the applicants but was not in a position to elaborate because of problems in obtaining instructions as to exactly what those objections were or where they might lead. I gave counsel for Mr Geoffrey Sheed leave to make submissions to the court in order to attempt to establish a right to be heard but, in the end, I am satisfied that on this present application Mr Geoffrey Sheed does not have a right to be heard, although he is a person who should be notified of the application.
There was also an application by counsel for Mrs Sandra Cindy Sheed, the former wife of the deceased, seeking leave to be heard in opposition to the grant. Again, I gave leave to make submissions but, after hearing submissions, I concluded that Mrs Sandra Cindy Sheed does not have a right to be heard in opposition to the application for the grant of probate, not being a beneficiary named in the will propounded or in any other will produced, and not being a person entitled in distribution in the event of an intestacy. Counsel for Mrs Sheed accepted that and indicated that any rights she might have may exist in a different forum, possibly in the Family Court.
In the circumstances, it seems that there is plainly an arguable issue over whether or not this will of 18 May 2009 was intended to be revoked by the ending of the testator's marriage to Mrs Sheed on 17 July 2009. That question depends upon whether there is other evidence establishing such an intention within the meaning of s 14A(2)(b) of the Wills Act. In the event that such an intention is established, it would seem to be the case that the appellants would be entitled to a grant of probate of the will propounded. However, in the absence of establishment of such an intention, the evidence strongly suggests that the deceased died intestate, in which case, on the evidence available, his estate would be distributed equally among his five surviving brothers and sisters, Diane, Geoffrey, Janine, Donald and Lynley.
Four of those persons have not had notice of the application for a grant of probate as directed by the Registrar. Accordingly, they have not had an opportunity to consider whether or not to object to the proceedings or to consent to them. If any wishes to object, the appropriate course would be to lodge a caveat against the grant specifying the grounds relied upon. If any caveat were lodged, there would then be an opportunity for the applicants to challenge the caveat. If that did not happen or the challenge were not successful, then it would be necessary for the applicants to apply for proof of the will in solemn form, naming the other members of the family who would benefit upon an intestacy as defendants. It is possible that one or more of those defendants might take an active role in defending the proceedings or counterclaiming for a grant of letters of administration as in an intestacy.
I do not consider that I should proceed with this appeal unless and until proper notice of the proceedings has been given to all persons entitled in the event of an intestacy and sufficient time has elapsed to allow them to make any objection to the proceedings which they may be disposed to make after receiving legal advice.
For those reasons this appeal will be adjourned to a date to be fixed.