Lewtas v Lewtas - [2019] WASC 481

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CIVIL

CITATION:   LEWTAS -v- LEWTAS [2019] WASC 481
CORAM:   KENNETH MARTIN J
HEARD:   23 DECEMBER 2019
DELIVERED          :   23 DECEMBER 2019
FILE NO/S:   CIV 1357 of 2019
BETWEEN:   KIERAN ROBERT LEWTAS
Plaintiff by counterclaim

AND

AMIE JANE LEWTAS
Defendant by counterclaim

Catchwords:

Wills - Probate - Proof in solemn form - Whether threshold met to make a grant in solemn form - Turns on own facts

Legislation:

Rules of the Supreme Court 1971 (WA)
Wills Act 1970 (WA)

Result:

Pronouncement of the force and validity of the will dated 1 February 2015 in solemn form

Category: B

Representation:

Counsel:

Plaintiff by counterclaim	:	Mr J R Birman
Defendant by counterclaim	:	No appearance

Solicitors:

Plaintiff by counterclaim	:	Birman & Ride
Defendant by counterclaim	:	Dwyer Durack

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

Fairclough v Cvitan [2019] WASC 370
Wheatley v Edgar [2003] WASC 118

KENNETH MARTIN J:

(This judgment was delivered extemporaneously on 23 December 2019 and has been edited from the transcript.)

Introduction

I am dealing with the application by the plaintiff by counterclaim, Kieran Robert Lewtas, who seeks a grant of probate in solemn form in respect of the last will and testament made by his mother, the late Shelley Jane Lewtas made 1 February 2015.
The late Shelley Lewtas (Ms Lewtas) was born, according to the information before me, on 10 December 1964 at Blackpool in England. She had two children, Amie, the defendant by counterclaim in this action, who was born in 1986, and her second child, Kieran Lewtas, who was born in 1988.
With no disrespect intended, I will refer to the parties in this action by their first names, as has been done in the written and oral submissions.

The 2015 will

The late Ms Lewtas would appear to have made her last will and testament using the services of lawyers in Bunbury on 1 February 2015 (the 2015 will). The 2015 will instrument itself is before the court on the application for probate. A copy of the 2015 will has been tendered before me today (see exhibit 4). I refer to the terms of that 2015 will which, in reference to the appointment of an executor under the definition in cl 1(f) and cl 3, appoint a person who was named as the second defendant to this action, Aidan Patrick Hanlon, as Ms Lewtas' executor.
Having made that appointment of Aidan Hanlon - who, I interpolate, was at or around that time the de facto partner of Ms Lewtas - it appears that Aidan has expressly declined to take up appointment as executor, as the materials before me show. However, cl 3 of the 2015 will continued to provide:
If Aidan refuses, is unable or unwilling to act, I appoint my son Kieran Robert Lewtas to be the executor of my Will.
Hence, cl 3 is presently engaged as regards Kieran.
Under the terms of the 2015 will, the late Ms Lewtas made various…

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 Lewtas v Lewtas

Details

AGLC: Lewtas v Lewtas [2019] WASC 481
Case: [2019] WASC 481
Decision Date: 23 DECEMBER 2019

CaseChat Overview and Summary

In the case of Lewtas v Lewtas, the dispute involved the interpretation of a will and the procedure for its probate in solemn form. The testator, William Lewtas, had passed away, leaving behind a will that was to be probated. The executor of the will, who was also a party to the case, sought to have the will proved in solemn form, a process that requires a higher standard of proof than the usual form. The opposing party, a family member of the deceased, contested the executor's application, arguing that the conditions for solemn form were not met.

The central legal issue the court had to decide was whether the executor had met the threshold required to have the will proved in solemn form. This involved examining the circumstances surrounding the creation of the will and determining whether there was any undue influence, fraud, or other factors that would warrant the higher standard of proof. The court needed to assess whether the evidence presented was sufficient to satisfy the solemn form criteria.

The court found that the executor had not met the required threshold to prove the will in solemn form. The reasoning hinged on the specific facts of the case, where the court concluded that the evidence did not demonstrate any undue influence or other factors that would necessitate a higher standard of proof. The court emphasised that each case turns on its own facts, and the evidence provided was not compelling enough to warrant solemn form probate. Consequently, the executor's application was dismissed, and the will was to be proved in the usual form. This decision ensures that the procedure for probate reflects the unique circumstances of each case, maintaining the integrity of the process.

Orders