Mackay v Mackay - [2023] WASC 241

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CHAMBERS

CITATION:   MACKAY -v- MACKAY [2023] WASC 241
CORAM:   MASTER SANDERSON
HEARD:   9 & 18 MAY 2023
DELIVERED          :   29 JUNE 2023
FILE NO/S:   CIV 1273 of 2023
BETWEEN:   MARK LEWIS MACKAY
Plaintiff
AND
JULIE GRACE MACKAY
First Defendant
ROBERT GEORGE O'BRIEN
Second Defendant
JULIE GRACE MACKAY
Plaintiff by counterclaim
MARK LEWIS MACKAY
Defendant by counterclaim

Catchwords:

Probate - Application for probate of will in solemn form - Turn on own facts

Legislation:

Nil

Result:

Probate in solemn form granted

Category: B

Representation:

Counsel:

Plaintiff	:	J J Hockley
First Defendant	:	T O Coyle
Second Defendant	:	No appearance
Plaintiff by counterclaim	:	T O Coyle
Defendant by counterclaim	:	J J Hockley

Solicitors:

Plaintiff	:	Peter May McAuliffe Legal (Busselton)
First Defendant	:	Solomon Hollett Lawyers
Second Defendant	:	In Person
Plaintiff by counterclaim	:	Solomon Hollett Lawyers
Defendant by counterclaim	:	Peter May McAuliffe Legal (Busselton)

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

Wheatley v Edgar [2003] WASC 118; (2003) 4 ASTLR 1

MASTER SANDERSON:

By this action the plaintiff seeks to prove a will in solemn form. The need to take this action arises from the irretrievable breakdown in relations between the plaintiff and the first defendant. The relevant facts can be summarised as follows.
The plaintiff and the first defendant are brother and sister. They are two of the four children of Arthur Lewis Mackay (the deceased). The deceased's wife, Maureen Mackay, predeceased him by 17 hours. The plaintiff together with the first defendant and the second defendant were made executors of the first and only will of the deceased. That will is dated 13 January 2017.
Applications for probate were filed by the plaintiff and the first defendant. Registrar Griffin wrote to the parties indicating that nothing would happen for one month unless one of the parties proceeded to take legal action before the month lapsed. The plaintiff then issued these proceedings. The orders sought in the statement of claim were relevantly the following:
1.An order that the court pronounce the force and validity of the 2017 will of the late Arthur Lewis Mackay dated 13 January 2017.
2.The court direct the probate registrar to issue a grant of probate in solemn form to the plaintiff.
3.The costs of and incidental to this application be paid from the estate of the deceased on an indemnity basis.
On 4 May 2023, the plaintiff filed a minute of orders which embodied the orders sought in the statement of claim. As an alternative, the plaintiff sought an order that there be a grant of probate in common form. No amendment has been made to the statement of claim but I have proceeded on the basis that if the plaintiff sought to amend the prayer for relief it would be uncontroversial.
The first defendant filed a notice of appearance but the second defendant did not. The time limit for filing a defence by the first defendant ran out without the…

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 Mackay v Mackay

Details

AGLC: Mackay v Mackay [2023] WASC 241
Case: [2023] WASC 241
Decision Date

CaseChat Overview and Summary

In this case, the plaintiff, Mark Lewis Mackay, sought to obtain a grant of probate for the will of his late father, Arthur Lewis Mackay, in solemn form. The will was dated 13 January 2017 and was the sole testamentary document executed by the deceased. Mark's sister, Julie Grace Mackay, who was the first defendant, and Robert George O'Brien, the second defendant, were also named as executors of the will. The relationship between Mark and Julie deteriorated to the point where legal proceedings were necessary to resolve the dispute over the grant of probate. The second defendant did not appear in the proceedings.

The central legal issue before the court was whether the plaintiff was entitled to a grant of probate in solemn form for the deceased's will, given the breakdown in the relationship between the plaintiff and the first defendant. The court also had to consider the first defendant's counterclaim, which sought the appointment of an independent executor for the deceased's estate, alleging questionable dealings by the plaintiff concerning the estate.

The court found that the plaintiff was entitled to the grant of probate in solemn form as the will was regular on its face and there was no evidence or pleading suggesting it was not properly executed or that the deceased lacked the capacity to make the will. The court noted that the first defendant's counterclaim was not arguable in these proceedings, as it did not provide a basis for the appointment of an independent executor. The court ruled that the first defendant's relationship issues with the plaintiff did not preclude the grant of probate.

The court granted the plaintiff's application for probate in solemn form and directed the probate registrar to issue the grant to Mark Lewis Mackay. The court also ordered that the costs of and incidental to this application be paid from the estate of the deceased on an indemnity basis.

Orders