PERPETUAL TRUSTEES (WA) LTD -v- GAILEY & ANOR [1999] WASC 61

Jurisdiction:	SUPREME COURT OF WESTERN AUSTRALIA	Citation No:	[1999] WASC 61
Case No:	CIV:1069/1999	Heard:	26 MAY 1999
Coram:	SCOTT J	Delivered:	17/06/99
No of pages:	6	Judgment Part:	1 of 1
Result:	Application granted.
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Parties:	PERPETUAL TRUSTEES (WA) LTD GREGORY SYDNEY GAILEY PAMELA REMA RICHARDS
Catchwords:	Wills, probate and letters of administration The making of a will Testamentary instruments Informal wills Whether hand-written amendments not witnessed constitute last will Intentions of deceased.
Legislation:	Wills Act 1970, s 10 and s 35
Case References:	James v Burdekin & Ors (1990) 3 WAR 298 Sugden v Lord St Leonard's [1874-80] All ER 21 Crossley v Crossley [1989] WAR 227 Malatesta v Scott, unreported; SCt of WA; Library No 940291 Marsden v Adler, unreported; SCt of WA; Library No 980180 Shields v Caratozzola (1991) 6 WAR 1

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

IN CHAMBERS

CITATION : PERPETUAL TRUSTEES (WA) LTD -v- GAILEY & ANOR [1999] WASC 61 CORAM : SCOTT J HEARD : 26 MAY 1999 DELIVERED : 17 JUNE 1999 FILE NO/S : CIV 1069 of 1999 MATTER : Will of DOROTHY EMMA GAILEY late of Kensington Nursing Home, 62 Gwenyfred Road, South Perth, in the State of Western Australia, Widow (DEC) BETWEEN : PERPETUAL TRUSTEES (WA) LTD

Plaintiff

AND

GREGORY SYDNEY GAILEY

First Defendant

PAMELA REMA RICHARDS

Second Defendant

Catchwords:

Wills, probate and letters of administration - The making of a will - Testamentary instruments - Informal wills - Whether hand-written amendments not witnessed constitute last will - Intentions of deceased.

Legislation:

Wills Act 1970, s 10 and s 35

(Page 2)

Result:

Application granted.

Representation:

Counsel:

Plaintiff : Ms M R Bloch

First Defendant : Mr M J Hayter

Second Defendant : Ms A P Tay

Solicitors:

Plaintiff : Merle Bloch

First Defendant : M J Hayter & Co

Second Defendant : Skea Nelson & Hager

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

James v Burdekin & Ors (1990) 3 WAR 298
Sugden v Lord St Leonard's [1874-80] All ER 21

Case(s) also cited:

Crossley v Crossley [1989] WAR 227
Malatesta v Scott, unreported; SCt of WA; Library No 940291
Marsden v Adler, unreported; SCt of WA; Library No 980180
Shields v Caratozzola (1991) 6 WAR 1

(Page 3)

1 SCOTT J: In this matter, the plaintiff, by way of an amended originating summons, seeks a declaration determining which of two documents constitutes the last will and testament of Dorothy Emma Gailey ("the deceased"). The declarations sought are:

1. A declaration that the court is satisfied that the deceased intended the copy will dated 13 September 1992 as amended by hand-written amendments on the face of the copy to constitute her last will; or alternatively -

2. If the court is not satisfied that the deceased intended the copy will dated 13 September 1992 as amended by hand-written amendments on the face of the copy to constitute her last will, a declaration that 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.

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Details

Case: [1999] WASC 61
Decision Date

CaseChat Overview and Summary

The case of Perpetual Trustees (WA) Ltd v Gailey involved a dispute over the validity of a will in the Supreme Court of Western Australia. The central issue was whether a copy of the will, which had been altered by hand-written amendments and initialled by the deceased, constituted her last will. The plaintiff sought a declaration to clarify which document, if either, was the deceased's final testament. The first defendant provided a copy of the will with handwritten changes, while the second defendant, a beneficiary under the original will, contested the alterations. The court needed to determine whether the document, as amended, was intended by the deceased to be her final will.

The legal issues before the court involved the interpretation of the Wills Act 1970, particularly sections 10 and 35, which deal with the alteration of wills and the court's satisfaction of the deceased's intentions. The court had to decide whether the alterations to the will met the statutory requirements for validity and whether there was sufficient evidence to conclude that the deceased intended the amended document to be her last will. The court also considered the legislative intent behind the removal of the "no reasonable doubt" standard in informal wills, substituting it with the balance of probabilities standard.

The court found that the deceased intended the document, as amended, to constitute her last will. The evidence included the initials of the deceased on the document, the deceased's statement to her family regarding the changes, and the manner in which the document was treated and stored. The court was satisfied on the balance of probabilities that the deceased intended the amended document to be her final will. Consequently, the court granted the plaintiff's application, declaring that the document as altered constituted the last will of the deceased. The court ordered that the document be admitted to probate as the deceased's informal will.

Orders