McDonald v Birnie - [2024] WASC 174

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CHAMBERS

CITATION:   MCDONALD -v- BIRNIE [2024] WASC 174
CORAM:   FORRESTER J
HEARD:   ON THE PAPERS
DELIVERED          :   15 MAY 2024
FILE NO/S:   CIV 1059 of 2023
BETWEEN:   ZACHARY STEVEN MCDONALD
Plaintiff

AND

TAMARA BETH BIRNIE
Defendant

Catchwords:

Wills - Probate - Uncontested application for proof of will in solemn form - O 73 r 19 of the Rules of the Supreme Court 1971 (WA)

Legislation:

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

Result:

Will pronounced as having force and effect in solemn form of law

Category: B

Representation:

Counsel:

Plaintiff	:	No appearance
Defendant	:	No appearance

Solicitors:

Plaintiff	:	Lawton Gillon
Defendant	:	Avon Legal

Cases referred to in decision:

Fairclough v Cvitan [2019] WASC 370
Grant Thomas Russell as executor of the will of Emily Jane Anderson v Anderson [2021] WASC 435
Scaffidi v Scaffidi [No 2] [2022] WASC 227
Wheatley v Edgar [2003] WASC 118; (2003) 4 ASTLR 1

FORRESTER J:

Introduction

The late Terry Verdun McDonald (the Deceased) died on 1 October 2022. He left a will dated 8 September 2022 appointing Zachary Steven McDonald as the sole executor and beneficiary of the estate (the Will).
Zachary McDonald (Mr McDonald), in his capacity as executor of the Deceased's estate, has applied for an order pronouncing the force and validity of the Will and a grant of probate in solemn form in his favour.

Proceedings

Mr McDonald lodged an application for probate on 11 November 2022, following which a registrar caused a Notice of Requisition to be issued advising that the defendant had lodged a caveat in relation to the estate of the Deceased.
The writ was lodged on 24 January 2023. It was amended on 9 May 2023. The defendant filed a defence and counterclaim on 22 June 2023.
The parties have consented to an order pronouncing the force and validity of the Will and a grant of probate in solemn form in Mr McDonald's favour.
On 16 April 2024 orders were made by me, by consent, that:
(a)the defendant have leave to wholly withdraw the defence and to discontinue the counterclaim;
(b)the matter be set down for an undefended trial pursuant to O 73 r 19 of the Rules of the Supreme Court 1971 (WA); and
(c)the matter be determined on the papers.

Evidence adduced at the undefended trial

Mr McDonald relies on the following affidavits filed in the proceedings:
(a)affidavit of Zachary Steven McDonald sworn 7 March 2023;
(b)affidavit of Petrus Stephanus Venter sworn 28 February 2024; and
(c)affidavit of Zachary Steven McDonald sworn 1 March 2024.
Written submissions were filed on behalf of the plaintiff.
The defendant was informed of the affidavits upon which Mr McDonald intended to rely and no objections have been raised or submissions filed on her behalf.

Factual background

The facts, as taken from the affidavits, are not in dispute.
The Deceased was born on 18 February 1962.
On 18 February 2012, the Deceased married…

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 McDonald v Birnie

Details

AGLC: McDonald v Birnie [2024] WASC 174
Case: [2024] WASC 174
Decision Date: 15 MAY 2024

CaseChat Overview and Summary

In the matter of McDonald v Birnie, the court was presented with an uncontested application for the proof of a will in solemn form. The applicant, McDonald, sought to have the will of the deceased, Birnie, admitted to probate. The application was filed under Order 73 Rule 19 of the Rules of the Supreme Court 1971 (WA), which governs the procedures for proving wills in solemn form.

The primary legal issue before the court was whether the will satisfied the requirements for solemn form under the relevant legislation. This included confirming that the will was duly executed, witnessed, and that the formalities were properly observed. Given that the application was uncontested, the court had to rely on the documentary evidence and affidavits provided by the applicant to determine if these requirements had been met.

The court reviewed the evidence, including the will itself, the affidavits attesting to its execution, and the witness statements. It found that all the formalities had been properly observed and the will had been duly executed. Consequently, the court granted the application and issued the order for the proof of the will in solemn form. The decision underscored the importance of strict compliance with the formalities required for wills executed in solemn form to ensure the validity and enforceability of the testamentary dispositions.

Orders