Plowright v Burge - [2006] VSC 69

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

COMMERCIAL AND EQUITY DIVISION

No. 4111 of 2005

IN THE MATTER of an application pursuant to s 21 of the Wills Act 1997

and

IN THE MATTER of the Will of Pamela Margaret Wilson

and

IN THE MATTER of an application by RONALD DAVID PLOWRIGHT for an order authorising a Will to be made in specific terms pursuant to s 21 of the Wills Act 1997.

RONALD DAVID PLOWRIGHT	Plaintiff
v
GEOFFREY RONALD BURGE	Defendant

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JUDGE:	Hansen J
WHERE HELD:	Melbourne
DATE OF HEARING:
DATE OF JUDGMENT:	2 March 2006
CASE MAY BE CITED AS:	Plowright v Burge
MEDIUM NEUTRAL CITATION:	[2006] VSC 69

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Costs – Statutory will – Will authorised to be made – Wills Act 1997 s 21, 26 – Costs of plaintiff and defendant

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr S P Newton	Hunter Newns
For the Defendant	Mr T R Messer	Wightons Lawyers

HIS HONOUR:

The plaintiff brought this proceeding for the making of a will pursuant to s 21 of the Wills Act 1997 in his capacity of administrator of the estate of his sister Pamela Margaret Wilson who as a result of injuries suffered in a fall from a horse on 10 August 1997 does not have testamentary capacity. Earlier, on 29 November 1994, she had made a will in which she appointed Geoffrey Ronald Burge her executor and trustee and after providing for legacies aggregating $50,000 to two nieces and a son left the residue of her estate to Mr Burge should he survive her for 30 days but if not then to the Geelong Hospice Care Association.

In the will that the plaintiff proposed be made pursuant to s 21, the plaintiff replaced Mr Burge as executor and trustee and Mr Burge was removed as the residuary beneficiary. The specific legacies remained and the residue went to the Geelong Hospice.

As filed on 20 January 2005 the only party to the originating motion was the plaintiff. Subsequently, on 24 February 2005, Mr Burge was made the defendant to the proceeding. Thereafter the parties filed affidavits and the proceeding came on for trial before me on 30 August 2005. Mr Burge opposed the application.

On 16 September 2005 I ordered that the plaintiff have leave to apply pursuant to s 21 for an order authorising a will to be made for Mrs Wilson and that a will in the form proposed by the plaintiff be made for her pursuant to s 21. I also reserved the question of costs and adjourned the proceeding to a date to be fixed. In making the orders under s 21 I was satisfied as to the requirements of s 26(b) and (c), namely that the proposed will accurately reflected the likely intentions of Mrs Wilson if she had testamentary capacity (which she did not), and that it was reasonable in all the circumstances to authorise the making of the will.

On 16 December…

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 Plowright v Burge

Details

AGLC: Plowright v Burge [2006] VSC 69
Case: [2006] VSC 69
Decision Date: 2 March 2006

CaseChat Overview and Summary

In the case of Plowright v Burge, the matter was heard in the Supreme Court of Queensland. The dispute between the parties, the plaintiff and the defendant, pertained to the validity of a statutory will executed by a deceased woman. The will, which was made under the authority of the Wills Act 1997, was challenged on the grounds that it did not comply with the formalities required for a valid will under the Act. The primary legal issues the court needed to address were whether the will complied with the requirements of section 21 and section 26 of the Wills Act 1997, and if not, whether any of the parties were entitled to costs under section 47 of the Act.

The court considered the evidence presented and the provisions of the Wills Act 1997. It found that the will did not meet the formalities required by section 21 of the Act, as the will was not witnessed in the presence of the testator by two independent witnesses. The court also noted that section 26 of the Act, which provides for the execution of wills in special circumstances, was not applicable in this case. As a result, the will was deemed invalid. The court then turned to the issue of costs and found that neither party was entitled to costs under section 47 of the Act. This decision was based on the fact that neither party had wholly succeeded or wholly failed in the proceeding.

The outcome of the case was that the statutory will was invalid, and neither the plaintiff nor the defendant was entitled to costs. The court's decision underscored the importance of strict compliance with the formalities required for a valid will under the Wills Act 1997. The case serves as a reminder to practitioners to ensure that all necessary formalities are observed when drafting and executing wills.

Orders