Pearse v Michael - [2002] WASC 135

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CHAMBERS

CITATION: PEARSE -v- MICHAEL & ANOR [2002] WASC 135

CORAM: WHEELER J

HEARD: 16 MAY 2002

DELIVERED : 4 JUNE 2002

FILE NO/S: CIV 2702 of 2001

BETWEEN: BARBARA PEARSE
Plaintiff
AND
DIANE KENNEDY MICHAEL
HELEN KENNEDY DUANE
Defendants

Catchwords:

Wills - Probate - Caveat - Summons for removal - Application to set aside summons - Turns on own facts

Legislation:

Administration Act, s 64

Non-Contentious Probate Rules, r 33

Result:

Plaintiff's application allowed

Category: B

Representation:

Counsel:

Plaintiff: Mr H N H Christie
Defendants: Mr M G Clay

Solicitors:

Plaintiff: Christie Strbac
Defendants: Martin de Haas

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

Nil

Case(s) also cited:

Del Borrello v Friedman and Lurie (A Firm) & Anor [2001] WASCA 348
Doe dem Wentworth; Ainslie v Collins [1831] NSWSC 50
Investors Compensation Scheme Ltd v West Bromwich Building Society [1998] 1 WLR 896
Re Maddocks (1891) WN (NSW) 32
Re Poland, unreported; SCt of WA (Master Seaman); Library No 6795 ; 22 July 1987
Re Tompson; Rhoden v Wicking [1947) VLR 60
Re Young (1968) 70 SR (NSW) 386

WHEELER J: These proceedings involve an originating summons issued 2 November 2001 by which the plaintiff, the executrix of the deceased William Pearse, seeks the removal of a caveat lodged by the defendants against an application for probate of the will of the deceased. There is also a defendants' chamber summons dated 19 December 2001 seeking the setting aside of the originating summons for failure to comply with s 64 of the Administration Act 1903 and certain of the rules. It seems to me that this latter application was overtaken by the orders of Justice Miller made 16 January 2002. His Honour ordered the defendants to depose on affidavit to the basis upon which the caveats should be maintained, gave the parties liberty thereafter to seek a special appointment for determination of the originating summons, and ordered certain amendments to the originating summons. The practical effect of those orders seems to me to be that the matter is proceeding as though it were an interlocutory application in the probate matter with appropriate directions made for its disposition by way of special appointment.
There seems to be no real dispute of principle between the parties. The question is whether the caveats are vexatious. That test is not a high one, but there must be some material which throws doubt on the will being taken at face value and which therefore justifies requiring the plaintiff to go to the expense and delay of proving the will by way of probate action.
There seem to be three reasons advanced by the defendants for suggesting that the will should not be taken at face value. The first relates to a typographical error; the second relates to something which one of the defendants deposes was said by the deceased; and the third relates to what I might call the logic of the internal structure of 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.

Continue reading Pearse v Michael

Details

AGLC: Pearse v Michael [2002] WASC 135
Case: [2002] WASC 135
Decision Date

CaseChat Overview and Summary

In the case of Pearse v Michael, the plaintiff, Barbara Pearse, sought the removal of caveats lodged against her application for probate of the will of William Pearse, the deceased. The defendants, Diane Kennedy Michael and Helen Kennedy Duane, sought to set aside the summons for removal of the caveats, claiming it was issued without compliance with certain statutory provisions and rules. The court had to determine whether the caveats were vexatious, which would justify their removal. The court examined three main arguments put forward by the defendants, which were ultimately dismissed as insufficient to cast doubt on the validity of the will. The first argument was that a typographical error in the will suggested the deceased did not carefully review it, but the court found that such an error did not necessarily imply a lack of careful review or understanding of the will's contents. The second argument was based on statements made by the deceased, which the court deemed too vague and unsubstantiated to challenge the will's validity. The third argument focused on the internal structure of the will, but the court found that the provisions and language used were consistent with the deceased's clear intentions.

The court concluded that the caveats were vexatious as there was no valid basis to challenge the will's validity. Consequently, the court ordered the removal of the caveats and directed the defendants to pay the costs of the application.

Orders