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Manktelow v Public Trustee

Manktelow v Public Trustee

Case [2001] WASC 290 19 October 2001

Civil Litigation & Procedure

Wills & Succession

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MANKTELOW -v- THE PUBLIC TRUSTEE & ORS [2001] WASC 290

Reported Decision:	(2001) 25 WAR 126
Jurisdiction:	SUPREME COURT OF WESTERN AUSTRALIA	Citation No:	[2001] WASC 290
Case No:	CIV:2582/2001	Heard:	12 & 18 OCTOBER 2001
Coram:	HASLUCK J	Delivered:	19/10/01
No of pages:	11	Judgment Part:	1 of 1
Result:	Application for relief allowed
Category:	A
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Parties:	FREDERICK PAUL MANKTELOW THE PUBLIC TRUSTEE RAIVO TARIK EERO TARIK TEENA TARIK
Catchwords:	Administration Act Direction in deceased's will that her remains be buried Whether deceased should be buried in Perth or outside the State Powers and duties of the executor Ruling that the deceased be buried in Perth in order to give effect to the direction in the will
Legislation:	Administration Act 1903, s 45(1) Cremation Act 1928, s 8A Health Legislation Act 1986 Human Tissue and Transplant Act 1982 Inheritance (Family and Dependants Provision) Act 1972 Wills Act 1970 (WA)
Case References:	Beard v Baulkham Hills Shire Council (1986) 7 NSWLR 273 Boothman; Ex parte Trigg, unreported; SCt of WA; Library No 990031; 27 January 1999 Calma v Sesar (1992) 106 FLR 446 Doodeward v Spence (1908) 6 CLR 406 Gouriet v UPW [1979] AC 435 Ingamells v WA Trustees Ltd & Anor, unreported; FCt SCt of WA; Library No 930117; 5 March 1993 Onus v Alcoa of Australia Ltd (1982) 149 CLR 27 Paterson v Bunter [2000] WASC 83 Roche v Douglas [2000] WASC 22 Smith v Tamworth City Council (1997) 41 NSWLR 680 Williams v Williams (1882) 20 Ch D 659 Offley v Offley (1691) Prec Ch 26 Public Trustee v Loadsby (1908) 27 NZLR 801

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA CITATION : MANKTELOW -v- THE PUBLIC TRUSTEE & ORS [2001] WASC 290 CORAM : HASLUCK J HEARD : 12 & 18 OCTOBER 2001 DELIVERED : 19 OCTOBER 2001 FILE NO/S : CIV 2582 of 2001 BETWEEN : FREDERICK PAUL MANKTELOW

Plaintiff

AND

THE PUBLIC TRUSTEE

First Defendant

RAIVO TARIK

EERO TARIK

TEENA TARIK

Second Defendants

Catchwords:

Administration Act - Direction in deceased's will that her remains be buried - Whether deceased should be buried in Perth or outside the State - Powers and duties of the executor - Ruling that the deceased be buried in Perth in order to give effect to the direction in the will

Legislation:

Administration Act 1903, s 45(1)

Cremation Act 1928, s 8A
Health Legislation Act 1986

(Page 2)

Human Tissue and Transplant Act 1982
Inheritance (Family and Dependants Provision) Act 1972
Wills Act 1970 (WA)

Result:

Application for relief allowed

Category: A

Representation:

Counsel:

Plaintiff : Mr D Vilensky

First Defendant : Mr M J B Bowyer

Second Defendants : Mr W L Goodlet

Solicitors:

Plaintiff : Bowen Buchbinder Vilensky

First Defendant : Public Trustee

Second Defendants : Unmack & Unmack

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

Beard v Baulkham Hills Shire Council (1986) 7 NSWLR 273
Boothman; Ex parte Trigg, unreported; SCt of WA; Library No 990031; 27 January 1999
Calma v Sesar (1992) 106…

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 Manktelow v Public Trustee

Details

AGLC: Manktelow v Public Trustee [2001] WASC 290
Case: [2001] WASC 290
Decision Date

CaseChat Overview and Summary

The case of Manktelow v Public Trustee and Others was heard in the Supreme Court of Western Australia. The plaintiff, Frederick Paul Manktelow, sought to enforce a direction in the will of his deceased partner, Leida Tarik, that she be buried. The deceased had no property in her corpse, but her executor, the Public Trustee, had a right to custody of the body until it was properly buried. The will contained a direction that the deceased be buried, but did not specify a location. The plaintiff argued that the burial should occur in Perth, Western Australia, while the deceased's children argued for a burial in South Australia. The court considered the legal principles that applied to the case, including the right of the executor to bury the deceased and the need to give effect to the deceased's wishes.

The court found that the plaintiff had standing to seek orders under the Administration Act and that the direction in the will should be interpreted as requiring the burial to occur in Perth, Western Australia, where the deceased had been domiciled for many years before her death. The court rejected the argument that the body should be buried in South Australia, as there was no compelling reason to do so. The court granted the relief sought by the plaintiff and ordered that the deceased be buried in Perth.

Orders