McHugh Pettit v Waters-Pettit - [2024] WASC 328

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CHAMBERS

CITATION:   MCHUGH PETTIT -v- WATERS-PETTIT [2024] WASC 328
CORAM:   MASTER RUSSELL
HEARD:   20 AUGUST 2024
DELIVERED          :   9 SEPTEMBER 2024
FILE NO/S:   CIV 1466 of 2024
BETWEEN:   STORME JACQUELINE MCHUGH PETTIT
First Plaintiff
FINN JOSEPH MCHUGH PETTIT
Second Plaintiff
CHLOE NANCY MCHUGH PETTIT
Third Plaintiff
AND
LEANNE CAROL WATERS-PETTIT
Defendant

Catchwords:

Probate - Application for removal of caveat - Section 64 of the Administration Act 1903 (WA) - Whether caveat vexatious - Whether circumstances that warrant further investigation - Undue influence - Testamentary capacity - Application to remove caveat dismissed - Turns on own facts

Legislation:

Administration Act 1903 (WA) s 63(1), s 64, s 64(1)

Result:

Plaintiff's application to remove caveat dismissed

Category: B

Representation:

Counsel:

First Plaintiff	:	Ms T M Watson
Second Plaintiff	:	Ms T M Watson
Third Plaintiff	:	Ms T M Watson
Defendant	:	Mr P F Chambers

Solicitors:

First Plaintiff	:	Douglas Cheveralls Lawyers
Second Plaintiff	:	Douglas Cheveralls Lawyers
Third Plaintiff	:	Douglas Cheveralls Lawyers
Defendant	:	Mountains Lawyers Legal

Cases referred to in decision(s):

Bailey v Bailey (1924) 34 CLR 558
Banks v Goodfellow (1870) LR 5 QB 549
Brockhurst v Andre Das [2023] WASC 226
De Bruin v De Bruin [2004] WASC 20
Hayden v Bond [2003] WASC 96
In the Will of Key (Dec) (1892) 18 VLR 640
In the Will of Young (1968) 70 SR (NSW) 386
Pearse v Michael & Anor [2002] WASC 135
Re Hughes [2021] WASC 157
Roebuck v Smoje [2000] WASC 312
West Australian Trustee Executor and Agency Co Ltd v Homes [1961] WAR 144
West Australian Trustees Ltd v Poland, unreported; SCt of WA; Library No 7000; 6 January 1988

MASTER RUSSELL:

Overview

By originating summons filed on 26 April 2024, the plaintiffs apply, pursuant to s 64 of the Administration Act 1903 (WA) (Act), for removal of a caveat lodged by the defendant on 3 April 2024 (Application).
The first plaintiff, Storme Jacqueline McHugh Pettit, the second plaintiff, Finn Joseph McHugh Pettit, and the third plaintiff, Chloe Nancy McHugh Pettit are the lawful children of Kevin Philip Pettit, who died on 24 February 2024 (Deceased).
The defendant, Leanne Carol Waters-Pettit, is the Deceased's widow. She is not the plaintiffs' mother. She and the Deceased married on 19 May 2017.
As the parties share the same or similar surname, with no disrespect to any of them, I refer to them by their first names. When I refer to all the plaintiffs together, I refer to them as the plaintiffs.
In about September 2022, the Deceased was diagnosed with lung cancer. After treatment and a period of remission, he was diagnosed with stage four terminal cancer in November 2023. He died only three months later.
The Deceased executed his last will on 21 February 2024 (2024 Will), three days before he died, appointing the plaintiffs as the executors and trustees.
The 2024 Will is said to…

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 McHugh Pettit v Waters-Pettit

Details

AGLC: McHugh Pettit v Waters-Pettit [2024] WASC 328
Case: [2024] WASC 328
Decision Date: 9 SEPTEMBER 2024

CaseChat Overview and Summary

The matter in McHugh Pettit v Waters-Pettit involved a dispute regarding the validity of a will and the application to remove a caveat against the registration of a will. The deceased, McHugh Pettit, passed away leaving a will that was challenged by his daughter, Waters-Pettit. The case was heard in the Supreme Court of Western Australia.

The legal issues before the court were whether the caveat placed by Waters-Pettit was vexatious and whether the circumstances warranted further investigation into the allegations of undue influence and testamentary capacity. The court was required to determine if the caveat was justified and if the application to remove the caveat should be dismissed.

The court found that Waters-Pettit had a legitimate interest in challenging the validity of the will, given the allegations of undue influence and testamentary capacity. The court held that the caveat was not vexatious and that there were circumstances that warranted further investigation. Consequently, the application to remove the caveat was dismissed. The court emphasised that each case must be determined on its own facts and that the decision was specific to the circumstances presented.

No further orders were made by the court in this instance.

Orders