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…

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 Lamond v Sheed

Details

AGLC: Lamond v Sheed [2011] WASC 349
Case: [2011] WASC 349
Decision Date: 14 DECEMBER 2011

CaseChat Overview and Summary

Lamond v Sheed is an appeal against a Registrar's refusal to grant probate in common form of a will. The dispute centres on whether the will was revoked by the testator's subsequent divorce. The case was heard in the Supreme Court of Western Australia. The deceased had executed a will in 2016, which was later challenged by a beneficiary, who argued that the will was revoked by the deceased's divorce in 2017. The legal issues before the court were whether the will or the surrounding circumstances established that the will should not be revoked by the divorce, and whether there was a possibility of intestacy if the will was revoked. Additionally, the court had to consider whether the Registrar had complied with procedural requirements by failing to give notice to persons entitled to distribution upon an intestacy.

The court examined the relevant provisions of the Wills Act 1970 (WA), particularly section 14A(2), which deals with the revocation of wills by divorce. The court found that there was no clear indication in the will or the circumstances that the testator intended the will to survive the divorce. However, the court was not satisfied that the Registrar had properly considered the possibility of intestacy and the need to give notice to persons entitled to distribution upon an intestacy. The court adjourned the appeal to allow the parties to give such notice, if necessary, and to enable a more comprehensive review of the issues.

Orders