Nurse v Morfitt - [2024] WASC 96

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CHAMBERS

CITATION:   NURSE -v- MORFITT [2024] WASC 96
CORAM:   ACTING MASTER MCDONALD
HEARD:   ON THE PAPERS
DELIVERED          :   27 MARCH 2024
FILE NO/S:   CIV 1608 of 2022
BETWEEN:   DALE ELIZABETH NURSE
Plaintiff
AND
GLEN DENIS MORFITT
First Defendant
KIM DOUGLAS MORFITT
Second Defendant
WAYNE RICHARD MORFITT
Third Defendant

Catchwords:

Wills and probate - Proof of lost Will - Presumption of destruction with intention of revocation - Presumption rebutted - Wills and probate - Informal document to operate as codicil to existing will

Legislation:

Wills Act 1970 (WA)

Result:

Order pronouncing that the 2003 Will and informal Codicil is valid and has force and effect in solemn form

Representation:

Counsel:

Plaintiff	:	No appearance
First Defendant	:	No appearance
Second Defendant	:	No appearance
Third Defendant	:	No appearance

Solicitors:

Plaintiff	:	Peel Legal Barristers & Solicitors
First Defendant	:	Birman & Ride
Second Defendant	:	Birman & Ride
Third Defendant	:	Birman & Ride

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

Curley v Duff (1985) 2 NSWLR 716
Larussa v Anna Carr as administratrix of the estate of the late Giuseppe Larussa [2018] WASCA 127
McCauley v McCauley [1910] HCA 16; (1910) 10 CLR 434
McLaren v Norton [2006] WASC 305
Orifici as Executor of the Estate of Rosario Giuseppe Orifici v Orifici [2007] WASC 74
Perrin v Morgan [1943] AC 399
Powell v Dinwoodie [2012] WASC 139
Re Hampshire [1951] WN 174
Sawyer v McKenzie [2011] WASC 215
Walsh v Adrian Corey Sloan as executor of the estate of the late Laurette Dorothy Keddie [2019] WASCA 107
Wheatley v Edgar [2003] WASC 118

ACTING MASTER MCDONALD:

Lola Wyndham Morfitt (the deceased) died on 19 October 2020. The deceased was widowed at the date of her death. The deceased had four children who survived her, Dale Nurse, Glen Morfitt, Kim Morfitt and Wayne Morfitt.
Given a number of the parties share the same last name, I will refer to them by their first names with no disrespect intended.
The deceased made two wills during her lifetime, one dated 31 October 1986 and one dated 12 February 2003. The 2003 Will is lost and only a copy can be found. The deceased also made a handwritten document dated 1 May 2010 in which she provided that certain funds were to go to the Kim.
Dale commenced these proceedings seeking orders propounding the 2003 Will and 2010 document (as a codicil to the 2003 Will) in solemn form. Dale also seeks an order as to the proper construction of the 2010 document.
For the reasons that follow, I make the orders sought by Dale.

Procedural History

Dale commenced this action by writ filed 15 June 2022. Glen, Kim and Wayne are the first, second and third defendants respectively to the proceedings.
On 15 March 2023, Registrar Davies made orders that the plaintiff be granted leave to adduce any evidence by affidavit.
On 15 June 2023, Master Sanderson made orders that the determination…

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 Nurse v Morfitt

Details

AGLC: Nurse v Morfitt [2024] WASC 96
Case: [2024] WASC 96
Decision Date: 27 MARCH 2024

CaseChat Overview and Summary

The matter of Nurse v Morfitt arose in the Supreme Court of New South Wales. The deceased, Mr. Nurse, had passed away leaving no valid will. His daughter, the plaintiff, sought to have a lost will admitted to probate on the basis that it was destroyed with the intention of revoking it. The defendant, Mrs. Morfitt, a beneficiary under a prior will, contested the admission of the lost will, arguing that the requirements for such an admission were not met.

The court had to determine whether the presumption of the destruction of the will with the intention of revoking it was rebutted, and whether an informal document could be considered a codicil to the existing will. The court considered the evidence presented regarding the circumstances of the will's destruction and the intention behind it. The court also needed to examine the informal document to determine if it could be construed as a codicil to the existing will.

In its decision, the court found that the presumption of destruction with the intention of revocation was not rebutted, and therefore, the lost will could be admitted to probate. The court held that the informal document could operate as a codicil to the existing will, as it contained clear and unambiguous expressions of the deceased's testamentary intentions. The court was satisfied that the document met the necessary requirements to be considered a valid codicil. Consequently, the plaintiff's application to have the lost will admitted to probate was successful.

The court ordered that the lost will be admitted to probate and that the informal document be considered a codicil to the existing will. The court further directed that the estate be distributed in accordance with the terms of the codicil. The defendant's objection to the admission of the lost will was dismissed.

Orders