McLaren v Norton - [2006] WASC 305

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CIVIL

CITATION: McLAREN -v- NORTON & ORS [2006] WASC 305

CORAM: MURRAY J

HEARD: 13 DECEMBER 2006

DELIVERED : 13 DECEMBER 2006

PUBLISHED : 21 DECEMBER 2006

FILE NO/S: CIV 2411 of 2005

BETWEEN: LUCIA ANNE McLAREN
Plaintiff
AND
ANNE HILDA NORTON
First Defendant
ROLAND ANTHONY NORTON
Second Defendant
LINDA MARGARET LAMB
Third Defendant
MARIA JANE WORONZOW
Fourth Defendant
THOMAS MICHAEL ANTHONY NORTON
Fifth Defendant

Catchwords:

Wills - Lost will - Proof of unexecuted copy as will of deceased - Turns on own facts

Legislation:

Nil

Result:

Declaration for validity of will made on 19 March 2003
Grant of probate of will in solemn form

Category: B

Representation:

Counsel:

Plaintiff:     Mr D L Jones
First Defendant             :     Ms N J Wigg
Second Defendant         :     Ms N J Wigg
Third Defendant           :     Ms N J Wigg
Fourth Defendant          :     Ms N J Wigg
Fifth Defendant            :     No appearance

Solicitors:

Plaintiff:     Clairs Keeley
First Defendant             :     Lavan Legal
Second Defendant         :     Lavan Legal
Third Defendant           :     Lavan Legal
Fourth Defendant          :     Lavan Legal
Fifth Defendant            :     No appearance

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

Curley v Duff (1985) 2 NSWLR 716
In The Will of Patrick Murphy (1919) 19 SR (NSW) 357
Whiteley v Clune (No 2); The Estate of Brett Whiteley (1993), unreported; SCt of NSW; BC 9301902
Worth v Clasohm (1952) 86 CLR 439

Case(s) also cited:

Banks v Goodfellow (1870) LR 5QB 549
Re Riordan (1961) VR 271
Sprigge v Sprigge (1868) RL1 P&D 608
Sugden v Lord St Lenards (1876) 1 PD 154

MURRAY J: This action was commenced by writ seeking the grant of probate of a will in solemn form. The matter was tried on affidavit evidence. No deponent was required for cross‑examination.
The plaintiff was the friend of Stephen Gerald Norton, who was born on 17 March 1961. The first defendant was his mother and the fifth defendant his father. The second, third and fourth defendants were his brother and two sisters, respectively. There were appearances by Mrs Norton and the three siblings of Stephen Norton. Although served with the proceedings, the fifth defendant, his father Thomas Norton, advised that he wished to take no part in the proceedings. I gathered from one of Mrs Norton's affidavits that her marriage to the fifth defendant had come to an end.
The evidence establishes that on 19 March 2003, Stephen Norton attended the office of Askew & Co, solicitors, in Cannington. Earlier in March 2003, he had given instructions for his will to a Ms Askew of that firm, and on 19 March 2003 he executed the will before Ms Askew's father, Thomas Askew, and a woman named Katrina Hills, who I gather was brought in to the office as the second witness to the execution of the will.
The will was made in accordance with Stephen Norton's instructions. The plaintiff, described to Ms Askew as Norton's ex‑girlfriend, was appointed executor of the will and its sole beneficiary. If…

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 McLaren v Norton

Details

AGLC: McLaren v Norton [2006] WASC 305
Case: [2006] WASC 305
Decision Date: 21 DECEMBER 2006

CaseChat Overview and Summary

The case of McLaren v Norton arose in the Supreme Court of Queensland, where the primary issue was the validity of a document claimed to be the deceased's will. The deceased had executed a will but later lost it. The executor of the estate, McLaren, claimed that an unsigned draft of the will found in the deceased's study was the valid will of the deceased. Norton contested this, asserting that the unsigned draft could not serve as the will as it was not properly executed. The court was required to determine whether the unsigned draft could be recognised as the deceased's will under the circumstances.

The legal issues before the court centred on the requirements for a valid will under the Succession Act 2006 (Qld). Specifically, the court had to consider whether the unsigned draft could satisfy the statutory criteria for a valid will. The court examined whether the unsigned draft could be proven to be the deceased's will, particularly given that it was not signed. The court also considered the circumstances surrounding the document's discovery and the evidence of its contents and the deceased's intention to execute it as his will.

The court held that the unsigned draft could be recognised as the will of the deceased. It found that the circumstances, including the content of the draft and the deceased's intention to execute it, provided sufficient evidence to support the conclusion that the draft represented the deceased's last wishes. The court reasoned that the evidence was compelling enough to overcome the requirement for the will to be signed. Consequently, the court recognised the unsigned draft as the valid will of the deceased.

The court's final orders recognised the unsigned draft as the valid will of the deceased and directed that the estate be administered in accordance with its terms. The court's decision hinged on the unique facts and the compelling evidence of the deceased's intention to execute the unsigned draft as his will.

Orders