Wills - Probate - Informal wills - Detailed instructions for will given to solicitors - Solicitors prepared will in accordance with instructions - Will delivered to testator in hospital for execution - Testator died suddenly before executing will - Whether deceased authenticated and adopted draft will
EM HEENAN J: This is an action for proof in solemn form of law of an alleged informal will of the deceased, Kenneth Mitchell, who died on 6 November 2008. The alleged informal will is a testamentary document prepared by the deceased's solicitors shortly before his death, on instructions from the deceased, which the solicitors recorded. The solicitors prepared the document in accordance with the instructions of the deceased and delivered the document to him in hospital for execution only two days before his death, but he died suddenly, without executing the document. The issue for determination, therefore, is whether or not the evidence establishes that, notwithstanding the lack of execution, witnessing or dating of the alleged informal will, the deceased nevertheless authenticated and adopted the document as embodying his testamentary instructions ‑ Wills Act 1970 (WA) s 32(2)(a).
Kenneth Mitchell was born in Edinburgh, Scotland, on 29 August 1949. He was by occupation a window cleaner and had for many years been living at 16 Belstead Avenue, Noranda, in this State. He married the second defendant, Teresa Suk Soon Mitchell (nee Hwang) at Tuart Hill in this State on 29 August 1980 and by her had two children, James Mitchell, born 14 December 1982, and Michael Mitchell, born 11 September 1984. They are, respectively, the first defendant and the plaintiff.
His marriage to the second defendant lasted for about 28 years, until they were divorced in May 2008. The deceased did not marry or enter into any de facto relationship after 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.
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Details
AGLC
Mitchell v Mitchell [2010] WASC 174
Case
[2010] WASC 174
Decision Date
CaseChat Overview and Summary
In the Supreme Court of Victoria, Mitchell v Mitchell concerned the validity of an informal will. The deceased, Mr Mitchell, had instructed his solicitors to draft a will, and those instructions were followed precisely. The draft was delivered to Mr Mitchell in hospital, where he intended to execute it, but he died before he could do so. The court was asked to determine whether the draft will was authenticated and adopted by the deceased as his testamentary document. The central issue was whether the deceased had adopted and authenticated the draft will as his own testamentary document, thus satisfying the requirements for a valid informal will under Australian law. The court found that Mr Mitchell had indeed adopted the draft will as his own, as evidenced by the detailed instructions he provided and the fact that the draft was prepared in strict accordance with those instructions. The court also considered the circumstances of delivery and the deceased's intention to execute the will. Given these factors, the court admitted the draft will to probate. This decision underscores the importance of clear instructions and the execution process in determining the validity of informal wills.