Murphy v Lewis - [2021] WASC 251

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CIVIL

CITATION:   MURPHY -v- LEWIS [2021] WASC 251
CORAM:   SMITH J
HEARD:   23 JULY 2021
DELIVERED          :   23 JULY 2021
FILE NO/S:   CIV 2182 of 2020
BETWEEN:   HAYLEY SUSAN MURPHY
Plaintiff
AND
KYLIE JANE LEWIS
Defendant

Catchwords:

Wills – Probate – Proof in solemn form – Whether threshold met to make a grant in solemn form – Turns on own facts

Legislation:

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

Result:

Pronouncement of the force and validity of the will dated 9 April 2020 in solemn form

Category: B

Representation:

Counsel:

Plaintiff	:	Mr M Curwood SC
Defendant	:	No appearance

Solicitors:

Plaintiff	:	Frichot Lawyers
Defendant	:	Lynn & Brown Lawyers

Cases referred to in decision:

Fairclough v Cvitan [2019] WASC 370
The Public Trustee v Gerritsen [2012] WASC 201
Tolson v Hender [2009] WASC 319
Vandeleur v Franich (1991) 1 Qd R 481
Wheatley v Edgar [2003] WASC 118
Williams v Schwarzback [No 2] [2016] WASC 43

SMITH J:

Introduction

The plaintiff commenced this action by writ for proof of a will in solemn form.
The plaintiff seeks an order that the last will and testament executed on 9 April 2020 by the late Eileen Margaret Roberts (the deceased) who died on 14 April 2020 (aged 75 years) has force and effect in solemn form.
The action has been set down for trial on an unopposed basis, pursuant to O 73 r 19 of the Rules of the Supreme Court 1971 (WA), after the parties reached an agreement.
After hearing senior counsel for the plaintiff at the unopposed trial, I made the pronouncement, declaration and an order which reflect the terms agreed by the parties, in a minute of consent orders filed on 17 May 2021, as follows:
1.It is pronounced that the will and testament dated 9 April 2020 of the late EILEEN MARGARET ROBERTS (the deceased) referred to in the affidavit of scripts of Hayley Susan Murphy, sworn 26 February 2021 as attachment 'HSM-2' at pages 5 - 10 (the Will) is valid and has force in solemn form.
2.It is declared that the Will is the last will of the deceased, and that the Will was not revoked nor destroyed by the deceased or by any person in her presence, or by her direction with the intention of revoking it.
3.It is ordered that the Probate Registrar issue a grant of probate with the Will annexed in solemn form in favour of Hayley Susan Murphy.
The following reasons set out the reasons why I was satisfied the pronouncement, declaration and order should be made.

Background

The parties to the action are the surviving daughters of the deceased, who are each now adults.
Shortly prior to her death the deceased was diagnosed with terminal stage four lung cancer. Following her diagnosis, she made her will whilst an inpatient at Fiona Stanley Hospital on 9 April 2020. The will was executed in the presence of…

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 Murphy v Lewis

Details

AGLC: Murphy v Lewis [2021] WASC 251
Case: [2021] WASC 251
Decision Date

CaseChat Overview and Summary

The Supreme Court of Western Australia was presented with a case where Hayley Susan Murphy sought to have the will of her late mother, Eileen Margaret Roberts, admitted to probate in solemn form. The deceased had passed away on 14 April 2020, and the will in question was executed on 9 April 2020. Hayley, the plaintiff, sought to have the will declared valid, while Kylie Jane Lewis, the defendant, raised objections to the will's validity, asserting issues such as the deceased's testamentary capacity, lack of knowledge and approval of the will's contents, and undue influence exerted by Hayley and her defacto spouse. The central legal issues revolved around whether the will was properly executed, if the deceased had the requisite testamentary capacity, and if the deceased knew and approved of the will's contents.

Justice Smith reviewed the evidence provided by the parties, which included affidavits from the plaintiff, the deceased's solicitor, and the two witnesses who observed the will's execution. The evidence demonstrated that Eileen was diagnosed with terminal stage four lung cancer shortly before her death, and the will was executed while she was an inpatient at Fiona Stanley Hospital. The will was prepared by a solicitor, witnessed by two medical practitioners, and signed by the deceased in their presence. The witnesses attested to the deceased's testamentary capacity and her knowledge and approval of the will's contents. The court took into account the presumptions of fact that a duly executed will is presumed to be made by a person of competent understanding and that the testator's due execution of the will is sufficient evidence that they knew and approved of the terms, unless there was evidence to the contrary. Justice Smith concluded that the evidence was sufficient to satisfy the court of the due execution of the will by at least one attesting witness, and that the deceased had testamentary capacity and knew and approved of the will's contents.

In light of the evidence, Justice Smith made the pronouncement, declaration, and order as agreed upon by the parties, declaring the will valid and ordering the Probate Registrar to issue a grant of probate with the will annexed in solemn form in favour of Hayley Susan Murphy. The court found that the deceased held full testamentary capacity, knew and approved of the contents of the will, and that the will was executed validly in accordance with s 8 of the Wills Act 1970 (WA). The court's decision was based on the uncontradicted evidence presented by the parties, particularly the evidence of three independent witnesses, two of whom were medical practitioners, and the other, a certified legal practitioner.

Orders