Lewtas v Lewtas
[2019] WASC 481
•23 DECEMBER 2019
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 cash gifts, the subject of cl 4. She also made certain arrangements under cl 5 in respect of her residence and finally said that she gave the balance of her estate in equal shares to the children of hers that survived her (cl 6). In present circumstances, her two surviving children are Kieran and Amie.
Further background
To return to the narrative, the 2015 will was made on 1 February 2015, when Ms Lewtas was then 50 years old.
Subsequent to making her 2015 will, Ms Lewtas passed away at Donnybrook, Western Australia on 10 July 2018 at the age of 53. The related circumstances in which she died are tragic. In due course, there appears to have been some family disputation over the estate left by Ms Lewtas, giving rise to the commencement of these proceedings by Amie by writ on 27 February 2019.
The proceedings were defended by Kieran as the first defendant, who filed a defence and counterclaim through his lawyers on 28 March 2019. Effectively, the dispute at that time was over Amie's contention as to the existence and validity of another (informal) document subsequently made the day before Ms Lewtas passed away on 9 July 2018 (the 2018 document). By her writ, Amie had sought to prove the force and validity of the 2018 document as an informal will under the Wills Act 1970 (WA).
However, by his counterclaim, Kieran effectively sought that the 2015 will be proved instead - in direct resistance to the application made by Amie. By Kieran's counterclaim, he sought the pronouncement in the solemn form of law of the 2015 will. Kieran also seeks an order that the court direct the probate registrar to issue a grant of probate in solemn form of law to him in respect of that 2015 will instrument. He also seeks a further order that a caveat as filed by Amie (CAV 57 of 2018) be removed. He seeks further orders in respect of costs.
Fortunately, the disputation under Amie's writ and Kieran's counterclaim, which saw Aidan Hanlon named as a second defendant to the litigation, was resolved under a deed of family arrangement consummated on 26 September 2019. That arrangement was entered and was perfected confidentially. So I say very little about it, other than it appears that all parties have entered into settlement arrangements satisfactory to them. The fundamental basis of the arrangement appears that Amie no longer seeks to prove the 2018 document as an informal will.
By order of 7 October 2019, Amie's claim was dismissed by consent.
Moreover, upon the basis of the deed of family arrangement having been perfected, Amie now effectively abides by Kieran's application as counterclaimant to prove the 2015 will instrument of their mother in solemn form and to seek a grant of probate of it. The second defendant, Aidan Patrick Hanlon, also now effectively abides the court's decision and does not participate. All that information is communicated within affidavit materials that were filed at court.
Consequently, the confidential deed of family arrangement sees a resolution of family disputation, effectively, on a sensible basis and that would otherwise have the capacity to erode by costs a modest estate left by Ms Lewtas.
The residual issue then is whether the court, applying the appropriate legal threshold, is satisfied on effectively an unopposed application by Kieran, to prove in solemn form the terms of the 2015 will of the late Ms Lewtas.
Evidence before the court
In support of his application, Kieran relies on affidavits made by:
(a)himself sworn on 17 October 2019;
(b)Daniel Ryan Gill sworn on 8 October 2019;
(c)Terence Joseph Laverty sworn on 18 October 2019;
(d)Karen Patricia Laverty sworn on 18 October 2019;
(e)(affidavit of Scripts) of himself sworn on 16 April 2019; and
(f)(affidavit of Scripts) of Amie Jane Lewtas sworn on 17 April 2019.
Kieran's affidavit sworn 17 October 2019 provided the evidence in support of his application, including some background to the proceedings, as well as asset information concerning the estate. That affidavit became exhibit 1. The confidential deed of family arrangement attached became exhibit 1A.
The affidavit of Daniel Ryan Gill was tendered effectively to prove service on Aidan Hanlon. It became exhibit 2.
Terence Joseph Laverty and Karen Patricia Laverty were the independent witnesses who had personally witnessed Ms Lewtas executing her 2015 will. Mr and Mrs Laverty deposed to having had observed Ms Lewtas' execution in line with the formalities of the Wills Act. Their affidavits became exhibits 3A and 3B respectively.
Finally, Kieran read and relied on affidavits of scripts by himself sworn 16 April 2019 and by Amie, sworn 17 April 2019. These affidavits became exhibits 4 and 5 respectively.
Kieran also relied upon written submissions by his lawyers and the oral submissions which have been made on his behalf today by counsel.
The present application
As seen, the present application by Kieran seeking a grant of probate in solemn form is essentially unopposed, by reason of the events that I have now described.
Whilst that position is a consideration the court weighs and takes cognisance of in terms of determining whether to grant the relief now sought, it is not, as I explained in my reasons for decision in Fairclough v Cvitan [2019] WASC 370, the sole determinant in respect of resolving the present application by Kieran. A grant of probate in solemn form is essentially the proof of a will or testamentary instrument at the highest standard that the court can determine. Consequently, even a consent of all the relevant parties and an absence of any contradictor to the proof of the instrument is not determinative.
The court must be itself be left independently satisfied as to the validity of the instrument sought to be proved and as to the capacity of the deceased in respect of that instrument. To that end, I take cognisance presently of the following factors. First, the 2015 will, dated 1 February 2015, on its face presents as validly executed in accord with the terms of s 8 of the Wills Act. Moreover, that instrument has not been revoked by evidence of a subsequent marriage or a divorce by Ms Lewtas or by the destruction or otherwise of that 2015 instrument. The 2015 will was independently witnessed by Mr and Mrs Laverty, as the evidence now establishes.
Next, as seen, the 2015 will was professionally prepared by lawyers, that is, by Slater & Gordon of Bunbury. Its terms appear rational on their face, and otherwise meet the formalities of the Wills Act in terms of its execution. A presumption of law therefore arises by reference to a regular execution of a will instrument to the effect that the deceased held the requisite testamentary capacity at the time she executed that will on 1 February 2015 and, further, that she knew and approved of its contents. There is no evidence before me to the contrary. Therefore, there is no reason why those legal presumptions as to capacity and validity do not fully apply here.
It is also a relevant consideration, although, as I have said, not a wholly determinant consideration, that the interested parties, who are all parties to the present proceedings, have agreed upon a resolution in respect of how the Ms Lewtas' estate will be administered. I refer to those authorities at [26] of my reasons in Fairclough v Cvitan. The matter has proceeded effectively as an uncontested trial, pursuant to the terms of Rules of the Supreme Court 1971 (WA) O 73 r 19.
As such, the court, in the face of uncontradicted evidence and the presumptions which follow the current state of the evidence, is left satisfied in all the circumstances that it is now appropriate for the grant of probate in solemn form to issue.
I refer generally, in terms of the threshold for the grant of probate in solemn form, to the reasons of EM Heenan J in Wheatley v Edgar [2003] WASC 118. I am fully satisfied that that threshold is met in current circumstances.
Final orders
In terms of final orders then, I will order on the counterclaim of the first defendant, as follows:
1.The court pronounces the force and validity of the will of the late Shelley Jane Lewtas made 1 February 2015 in solemn form of law.
2.The court directs the Probate Registrar to issue a grant of probate in solemn form of law of the will of 1 February 2015 in favour of Kieran Robert Lewtas.
3.The caveat CAV 57 of 2018 lodged by Amie Jane Lewtas on 28 August 2018 be removed.
4The costs of these proceedings of the first defendant be paid from the Estate of Shelley Jane Lewtas on an indemnity basis and there otherwise be no order as to costs.
I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
DW
Associate to the Honourable Justice Martin8 JANUARY 2020
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