Lamond v Sheed [No 2]

[2012] WASC 101

LAMOND -v- SHEED [No 2] [2012] WASC 101

Jurisdiction:	SUPREME COURT OF WESTERN AUSTRALIA	Citation No:	[2012] WASC 101
Published:	23/03/2012
Case No:	PRO:3472/2010	Heard:	9 MARCH 2012
Coram:	EM HEENAN J	Delivered:	9/03/12
No of pages:	5	Judgment Part:	1 of 1
Result:	Appeal dismissed
Category:	B
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Parties:	DIANE HELEN LAMOND PETER BARRY LAMOND GEOFFREY SHEED
Catchwords:	Probate Revocation of will by divorce Whether evidence establishing a contrary intention Refusal of probate Registrar to grant probate in common form of will made  before divorce Appeal from Registrar Parties entitled on an intestacy opposed to grant Need to apply for proof of will in solemn form or for letters of administration upon an intestacy Appeal dismissed Costs deferred pending a grant of administration
Legislation:	Wills Act 1970 (WA)
Case References:	Nil

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

IN CHAMBERS

CITATION : LAMOND -v- SHEED [No 2] [2012] WASC 101 CORAM : EM HEENAN J HEARD : 9 MARCH 2012 DELIVERED : 9 MARCH 2012 PUBLISHED : 23 MARCH 2012 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

PETER BARRY LAMOND
Appellants

AND

GEOFFREY SHEED
Interested Party

Catchwords:

Probate - Revocation of will by divorce - Whether evidence establishing a contrary intention - Refusal of probate Registrar to grant probate in common form of will made before divorce - Appeal from Registrar - Parties entitled on an intestacy opposed to grant - Need to apply for proof of will in solemn form or for letters of administration upon an intestacy - Appeal dismissed - Costs deferred pending a grant of administration

(Page 2)

Legislation:

Wills Act 1970 (WA)

Result:

Appeal dismissed

Category: B

Representation:

Counsel:

Appellants : Mr P R MacMillan
Interested Party : Ms V Kafentzis

Solicitors:

Appellants : Chris Baker & Associates
Interested Party : Stoddart & Co

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

Nil

(Page 3)

1 EM HEENAN J: This is the adjourned hearing of an appeal by Diane Helen Lamond and Peter Barry Lamond from a decision of a Registrar refusing to grant probate in common form of an alleged will of Anthony John Sheed, late of 9 Jarvis Way, Sorrento, and of Green House Number 30 Sukajadi Central, Indonesia, sub-sea engineer, deceased.

2 The two appellants are the sole executors named in a will of the deceased which was made on 18 May 2009. In the application for the grant of probate it appeared that, not long after the making of the will, a matter of months, the marriage of the testator to his then wife was terminated by divorce. The divorce appears to have revoked the will on 17 July 2009 by virtue of s 14A(2) of the Wills Act 1970 (WA):

A will is revoked by the ending 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.

3 There is no appearance of such a contrary intention in the terms of this will but in answer to various requisitions by the probate registrar the appellants, Mr and Mrs Lamond, sought to establish that there is other evidence establishing such an intention. I referred to the details of that evidence in the reasons of decision which I gave on 7 November 2011 when adjourning the hearing of the appeal that day. The reason for that adjournment was to allow notice to be given to the brothers and sisters of the deceased who are each persons, together with the deceased's sister, one of the applicants, Diane Helen Lamond, who would be entitled to participate in distribution of his estate in the event that he had died intestate, as he would have done if this will has been revoked.

4 Since then, two affidavits have been filed by the appellants dated respectively 28 November 2011 and 3 January 2012, deposing to compliance with my directions that notice of the application for probate be given to the other members of the family and indicating that each other member of the family had responded in writing, indicating that he or she, as the case may be, is opposed to a grant of probate of this will in favour of the appellants.

5 None of the other brothers and sisters has filed a caveat against an application for a grant, notwithstanding that that is one possible response to the notice which I referred to in my reasons for decision of November last. The consequence of all that is that this appeal has been relisted for hearing, and it comes on for hearing in the absence of any of the other members of the family and without any mechanism by which they can be heard in opposition to the appeal.

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6 As I said in my dialogue with counsel, had each of the other members of the family consented to the grant sought, there would be little point now in requiring the appellants to do any more and a grant of probate could have been made effectively by consent. However, that is not the position. The question remains whether or not there was evidence before the court on this application in the non-contentious jurisdiction to establish, otherwise than from the content of the will, that the testator's intention was that his will would not be revoked upon the ending of his marriage. There is, of course, some evidence to that effect arising inferentially or circumstantially from the affidavits which were filed in support of the application before the Probate Registrar, but it is not entirely convincing and leaves the matter in doubt. I do not see how I could justifiably conclude that the Registrar was in error in declining to make a grant in that state of uncertainty.

7 It seems that in a situation such as this, where such uncertainty does exist, it is not possible for that uncertainty to be resolved adequately by non-contentious proceedings. The consequence is that the applicants for probate of this will now have the option of commencing proceedings for proof in solemn form of this will, in which case it would be necessary to name each of the other brothers and sisters of the deceased as defendants, being persons who would take in the event of an intestacy, as I have already explained. If that is done, then those other brothers and sisters will have an opportunity to appear and oppose the application either by putting the claimants to proof strictly of the issues which need to be established, and/or by seeking to cross-examine any witnesses called in support of the proposition that this is a will, shown by other evidence, to have been made with an intention that it should not be revoked by the testator's subsequent divorce. It would, of course, be open for any of the other members of the family to counterclaim for letters of administration.

8 If this course is followed, there will be a proper forum and a real opportunity to resolve the uncertainties. It seems that that is the course which must be followed. I have pointed out to counsel for the appellants that even an application for probate of this will in solemn form might fail and if there were then no alternative claim or counterclaim for letters of administration in the event of an intestacy, the undesirable consequence would be that there would have to be another set of proceedings or a common form application for letters of administration in favour of one or more of the members of the family entitled to such a grant.

9 While it is a matter for the parties, there is much to be said, for including an application for letters of administration as an alternative,

(Page 5)

perhaps an undesired and extreme alternative, to any application for proof in solemn form of this will. Whatever may be the course of future proceedings, I am satisfied that this appeal should be dismissed.

10 The appellants have sought an order for the costs of these proceedings to be paid out of the estate. I consider that it is premature to deal with the question of costs because the person ultimately responsible for determining what costs, and in what amounts, might be paid out of the estate will be the person or persons to whom any grant or representation is eventually made, whether of probate or letters of administration. It may be thought that if there is a grant of letters of administration to someone other than the present appellants, or one of them, there could be an issue as to whether or not the estate should bear the cost of these present proceedings. Accordingly, I will reserve the question of costs and give liberty to the present appellants to apply later for costs once a grant of representation is ultimately made.