O'Rourke v the Perpetual Trustees - [1987] TASSC 45

TASSC A41/1987

CITATION: O'Rourke v The Perpetual Trustees & Ors [1987] TASSC 45; A41/1987

PARTIES:  O'ROURKE
  v
  THE PERPETUAL TRUSTEES & ORS

TITLE OF COURT:  SUPREME COURT OF TASMANIA
JURISDICTION:  ORIGINAL
FILE NO/S:  A41/1987
DELIVERED ON:  6 August 1987
DELIVERED AT:
HEARING DATE:
JUDGMENT OF:  Underwood J

CATCHWORDS:

REPRESENTATION:

Counsel:
             Plaintiffs:
             Defendants:
Solicitors:
             Plaintiffs:
             Defendants:

Judgment Number: TASSC A41/1987
Number of paragraphs: 26

Serial No A41/1987
File No 2091/1985

O'ROURKE v THE PERPETUAL TRUSTEES & ORS

REASONS FOR JUDGMENT UNDERWOOD J

6 August 1987

This is an action for a decree of probate of a Will in solemn form. The deceased, Leo Bernard Kirkham, was a priest of the Roman Catholic Church. He died at Launceston on the 11 April 1985. By this action the plaintiffs propound the Will of the deceased dated the 20 May 1974 in which they are named executors. This Will is a valid will. It was drawn by a solicitor. It complies with the provisions of the Wills Act 1840, s9. By its terms, the deceased bequeathed the whole of his estate to the plaintiffs (after making provision for sale, postponement, payment of debts etc) upon trust:

"To pay or apply the whole or any part of the income or capital of my estate to such of my brothers sisters their children and descendants and all other relations not beyond the third degree as my trustees in their absolute discretion consider deserving or in need of financial assistance for their maintenance education advancement or benefit in life or such other purpose as my trustees in their absolute discretion think fit PROVIDED THAT none of my trustees shall be bound to see to the application of any income or capital so applied or paid as aforesaid. At the expiration of twenty years from the date of my death I DIRECT my trustees to pay the balance of my estate then remaining to the trustees of the property of the Roman Catholic Church in Tasmania for their own use and benefit absolutely."

The only issue in these proceedings is whether the deceased subsequently revoked that Will. The evidence was taken on affidavit and there were no disputed matters of fact.

In 1981, the deceased visited a Mr and Mrs O'Byrne of Launceston. He had with him a printed Will form of the type commonly available from stationers This form had printed on it these words:

"This is the last Will and Testament of me … of ... in the State of … I revoke all other wills made by me. I appoint … to be my Execut … , and direct that my Funeral and Testamentary Expenses and all my debts shall be paid as soon as conveniently may be after my decease.
I Give, Devise and bequeath unto"

At the foot of this page an attestation clause with appropriate blanks in it was printed.
On the reverse side 13 "directions" are printed, the sixth one of which reads:
"Every Will should be signed at…

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

Case: [1987] TASSC 45
Decision Date: 6 August 1987

CaseChat Overview and Summary

In the Supreme Court of Tasmania, the case of O'Rourke v The Perpetual Trustees & Ors was heard and decided on 6 August 1987. The plaintiffs sought a decree of probate for a Will in solemn form, executed by the deceased, Leo Bernard Kirkham, a priest of the Roman Catholic Church. The Will, dated 20 May 1974, named the plaintiffs as executors and bequeathed his estate to them upon trust, with specific conditions and a direction for the remainder of his estate to be given to the trustees of the property of the Roman Catholic Church in Tasmania after twenty years. The defendants argued that the Will had been revoked by two later documents, both of which contained revocation clauses, and thus sought to prevent the probate of the 1974 Will.

The primary legal issue before the court was whether the 1974 Will was validly revoked by the two subsequent documents. The court considered the requirements of the Wills Act 1840, particularly section 20, which mandates that a Will or Codicil can only be revoked by a writing declaring an intention to revoke and executed in the same manner as a Will. The court also examined the concept of animus revocandi, or the intention to revoke, which is necessary for a revocation to be effective.

The court found that the 1981 document, which contained a printed revocation clause, did not constitute a valid revocation of the 1974 Will as it was not executed in the manner required by the Wills Act. The court was not satisfied that the deceased had signed the document in the presence of the witnesses, nor that the witnesses had signed in the presence of the deceased. Additionally, the printed date and attestation clauses were incomplete.

Regarding the 1983 document, the court determined that it did meet the formal requirements of the Wills Act. However, the court concluded that the deceased did not possess the necessary intention to revoke the 1974 Will at the time of executing the 1983 document. The court found that the deceased likely intended the 1983 document to take effect only after it was completed by Sister Kirkham, according to his instructions. Consequently, the court found that the execution of the 1983 document did not operate to revoke the 1974 Will.

The court ultimately pronounced for the force and validity of the Last Will and Testament of Leo Bernard Kirkham, dated 20 May 1974, and decreed that it should be probated.

Orders