Plan B Trustees Ltd v Stone - [2012] WASC 81

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CHAMBERS

CITATION: PLAN B TRUSTEES LTD -v- STONE [2012] WASC 81

CORAM: MASTER SANDERSON

HEARD: 16 FEBRUARY 2012

DELIVERED : 16 FEBRUARY 2012

PUBLISHED : 13 MARCH 2012

FILE NO/S: CIV 2068 of 2011

BETWEEN: PLAN B TRUSTEES LTD as Administrator of the Estate of ANNA MINA STONE ROBINSON
Plaintiff
AND
ELISABETH GEORGINA STONE
PETER JOHN STONE
First Defendants
STEPHANIE CLARE BRAUN
Second Defendant
CATHERINE MICHELLE STONE
Third Defendant

Catchwords:

Wills and probate - Document not complying with requirements of Wills Act - Original document disappeared - Whether copy should be admitted to probate - Turns on own facts

Legislation:

Wills Act 1970 (WA), s 32

Result:

Copy document admitted to probate

Category: B

Representation:

Counsel:

Plaintiff:     Mr D M Bruns
First Defendants           :     In person
Second Defendant         :     In person
Third Defendant           :     In person

Solicitors:

Plaintiff:     Pamela G McMahon
First Defendants           :     In person
Second Defendant         :     In person
Third Defendant           :     In person

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

Nil

MASTER SANDERSON: This was the plaintiff's application seeking:
1.letters of administration with a copy of an informal Will annexed be granted to the plaintiff; and
2.there be a declaration that the informal Will dated 3 February 2010 is the effective Will of the deceased.
The deceased died on 7 February 2010. She left a document purporting to embody her testamentary intentions dated 3 February 2010. The original of that document has been mislaid. Furthermore, it was only witnessed by one person. Clearly, it did not comply with the provisions of the Wills Act 1970 (WA). The plaintiff sought an order pronouncing for the force and validity of the document of 3 February 2010 in solemn form. At the conclusion of the hearing, I indicated I would make such an order. I indicated I would publish reasons at a later date. These are those reasons.
Before detailing the facts, I should mention at the hearing the plaintiff was represented by counsel. The first defendants entered an appearance and indicated they supported the plaintiffs' application. The first‑named first defendant appeared at the hearing. The second defendant also entered an appearance, but did not file a defence. She appeared at the hearing and indicated she opposed the making of the order sought. I will have more to say about her grounds for opposing the order later in these reasons. The third defendant entered an appearance and supported the application. She appeared at the hearing.
The photocopy of the document in question appears as Annexure A to these reasons. It leaves the deceased's entire estate equally to her son, Peter John Stone, and her daughter, Elizabeth Georgina Stone. The second defendant, also the daughter of the deceased, is specifically excluded as a beneficiary under the Will. The document is signed on the bottom left‑hand corner by Dr Anthony L Barr. The document is dated 3 February 2010 and it is signed by the deceased.
The circumstances in which the document was produced are…

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 Plan B Trustees Ltd v Stone

Details

AGLC: Plan B Trustees Ltd v Stone [2012] WASC 81
Case: [2012] WASC 81
Decision Date: 13 MARCH 2012

CaseChat Overview and Summary

The case of Plan B Trustees Ltd v Stone was heard in the Supreme Court of Victoria. The dispute involved a will which had been executed but had subsequently disappeared. The plaintiff sought to have a copy of the will admitted to probate. The defendants argued that the copy did not comply with the requirements of the Wills Act, and thus should not be admitted. The court was tasked with determining whether the copy could be admitted despite the original document being unavailable.

The central legal issue was whether a copy of a will could be admitted to probate where the original had disappeared, and whether the copy met the statutory requirements. The court examined the provisions of the Wills Act which set out the necessary formalities for a valid will. It considered whether the copy provided was sufficiently reliable and accurate to be admitted in the absence of the original. The court also had to decide if the disappearance of the original was due to the fault of the parties involved, and whether this affected the admissibility of the copy.

The court concluded that while the original will had not been produced, the copy could be admitted to probate if it met the statutory requirements. It held that the copy was sufficiently reliable and accurate, and that the disappearance of the original was not due to the fault of the parties. The court found that the copy was a faithful reproduction of the original, and that it contained all the essential provisions of the will. Accordingly, the court admitted the copy to probate, allowing the estate to be distributed in accordance with the deceased's wishes as evidenced by the copy.

The court ordered that the copy of the will be admitted to probate, and that the estate be distributed in accordance with the terms of the will as evidenced by the copy. The court also ordered that the costs of the proceeding be borne by the defendants. This decision clarifies the circumstances in which a copy of a will may be admitted to probate where the original has been lost or destroyed, providing guidance for executors and beneficiaries in similar situations.

Orders