Mott v Hill - [2021] WASC 43

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CHAMBERS

CITATION:   MOTT -v- HILL [2021] WASC 43
CORAM:   KENNETH MARTIN J
HEARD:   ON THE PAPERS
DELIVERED          :   19 FEBRUARY 2021
FILE NO/S:   CIV 1529 of 2020
BETWEEN:   TERENCE HAROLD MOTT
Plaintiff
AND
PAMELA ANN HILL
First Defendant
JULIE MARIE ZENOBY
Second Defendant
PAMELA ANN HILL
JULIE MARIE ZENOBY
Plaintiff by counterclaim
TERENCE HAROLD MOTT
Defendant by counterclaim

Catchwords:

Wills - Probate - Proof in solemn form - Whether threshold met to make a grant in solemn form - Letters of Administration - Turns on own facts

Legislation:

Wills Act 1970 (WA)

Result:

Application granted

Category: B

Representation:

Counsel:

Plaintiff	:	No appearance
First Defendant	:	No appearance
Second Defendant	:	No appearance
Plaintiff by counterclaim	:	No appearance
Defendant by counterclaim	:	No appearance

Solicitors:

Plaintiff	:	Haynes Robinson
First Defendant	:	Formbys Lawyers
Second Defendant	:	Formbys Lawyers
Plaintiff by counterclaim	:	Formbys Lawyers
Defendant by counterclaim	:	Haynes Robinson

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

Fairclough v Cvitan [2019] WASC 370
The Public Trustee v Nezmeskal [2018] WASC 394
Timbury v Coffee (1941) 66 CLR 277
Wheatley v Edgar [2003] WASC 118

KENNETH MARTIN J:

Introduction

This is the plaintiff's application by amended statement of claim dated 26 October 2020 (ASOC) seeking that the court make orders pronouncing the force and validity of the Will of his later mother, Noreen Patricia Mott dated 11 July 2018 (the Will).
By his ASOC, the plaintiff also seeks further orders granting, and that the Probate Registrar be directed to so grant, letters of administration to Mr Ian Torrington Blatchford in respect of the Will.
This application comes before me essentially uncontested, following what appears to have been a successful mediation outcome conducted before a Registrar of this court.
Given the uncontested status, it is unnecessary to advance too far into the history of this matter. However, for some level of context I will note that initially the defendants (the plaintiff's sisters) had contested the application and in fact had pursued a counterclaim against the plaintiff - seeking that an earlier will of their mother instead be pronounced as in force and valid. However, following mediation, the ASOC was filed and the defendants have all filed a notice to abide by the decision of the court upon the plaintiff's claim under the ASOC.
I will also note that Mr Blatchford has provided his consent to the court that letters of administration of the Will be granted to him.
Following all these events, the plaintiff's application was ordered to be determined on the papers by affidavit evidence. I now determine the application accordingly.
The plaintiff formally seeks the orders he does since prior to the commencement of the proceedings, the defendants had said that they were not satisfied the testator (Mrs Mott) knew of and approved the contents of the Will. However, the plaintiff submits that this Will was compliant with s 8 of the Wills Act 1970 (WA) and thus is a valid…

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 Mott v Hill

Details

AGLC: Mott v Hill [2021] WASC 43
Case: [2021] WASC 43
Decision Date

CaseChat Overview and Summary

The case of Mott v Hill involved the application by Terence Harold Mott to have the validity of his late mother's will pronounced and to grant letters of administration to Ian Torrington Blatchford. The defendants, Pamela Ann Hill and Julie Marie Zenoby, the plaintiff's sisters, initially contested the application but later withdrew their opposition following a mediation. The legal issues before the court were whether the will met the requirements of section 8 of the Wills Act 1970 (WA) and whether Noreen Patricia Mott had the necessary testamentary capacity to execute the will.

The court examined the will's compliance with the statutory requirements, including its written form, the testator's signature, and the presence of two witnesses. The court also considered medical evidence and file notes from the lawyer who drafted the will, which indicated that Noreen Patricia Mott was of sound mind and fully understood the contents of the will when she executed it. The court found that the will was valid and that Noreen Patricia Mott had the requisite testamentary capacity.

Consequently, the court granted the plaintiff's application, pronouncing the force and validity of the will and issuing letters of administration to Ian Torrington Blatchford. The parties were ordered to bear their own costs of the proceedings.

Orders