POWELL -v- DINWOODIE [2012] WASC 139
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2012] WASC 139 | |
| Case No: | CIV:1091/2011 | 21 FEBRUARY 2012 & ON THE PAPERS | |
| Coram: | EM HEENAN J | 26/04/12 | |
| 16 | Judgment Part: | 1 of 1 | |
| Result: | Grant of probate in solemn form of copy of will dated 16 July 2007 limited until the original or a more authentic copy of that will is proved | ||
| B | |||
| PDF Version |
| Parties: | CHRISTOPHER RONALD POWELL KAREN JOY POWELL GLEN DINWOODIE KELLY MULDOON |
Catchwords: | Probate Proof of will in solemn form Lost will Contents established by copy Execution of original Whether will revoked Presumption of revocation arising from loss of will rebutted |
Legislation: | Administration Act 1903 (WA), s 14 |
Case References: | Cahill v Rhodes [2002] NSWSC 561 Curley v Duff (1985) 2 NSWLR 716 Dalton v Dalton (Unreported, WASC,Library No 970479, 24 September 1977) McCauley v McCauley (1910) 10 CLR 434 Newell v Weeks (1814) 2 Phillim 224; 161 ER 1126 Orifici as Executor of the Estate of Rosaria Giuseppe Orifici v Orifici [2007] WASC 74 Proud v Proud [2012] WASC 134 Re Langton (dec); Langton v Lloyds Bank Ltd [1964] P 163; 1 All ER 749 Sawyer v McKenzie [2011] WASC 215 Scarpuzza v Scarpuzza [2011] WASC 65 Welch v Phillips (1836) 1 Moo PC 302; 12 ER 824 |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
- IN CIVIL
- KAREN JOY POWELL
Plaintiffs
AND
GLEN DINWOODIE
First Defendant
KELLY MULDOON
Second Defendant
Catchwords:
Probate - Proof of will in solemn form - Lost will - Contents established by copy - Execution of original - Whether will revoked - Presumption of revocation arising from loss of will rebutted
Legislation:
Administration Act 1903 (WA), s 14
(Page 2)
Result:
Grant of probate in solemn form of copy of will dated 16 July 2007 limited until the original or a more authentic copy of that will is proved
Category: B
Representation:
Counsel:
Plaintiffs : Mr I A Morison
First Defendant : Mr G P Mohen
Second Defendant : Mr G P Mohen
Solicitors:
Plaintiffs : Michael Rogers & Associates
First Defendant : Civic Legal
Second Defendant : Civic Legal
Case(s) referred to in judgment(s):
Cahill v Rhodes [2002] NSWSC 561
Curley v Duff (1985) 2 NSWLR 716
Dalton v Dalton (Unreported, WASC,Library No 970479, 24 September 1977)
McCauley v McCauley (1910) 10 CLR 434
Newell v Weeks (1814) 2 Phillim 224; 161 ER 1126
Orifici as Executor of the Estate of Rosaria Giuseppe Orifici v Orifici [2007] WASC 74
Proud v Proud [2012] WASC 134
Re Langton (dec); Langton v Lloyds Bank Ltd [1964] P 163; 1 All ER 749
Sawyer v McKenzie [2011] WASC 215
Scarpuzza v…
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- AGLC
- Powell v Dinwoodie [2012] WASC 139
- Case
- [2012] WASC 139
- Decision Date
CaseChat Overview and Summary
The case of Powell v Dinwoodie involved the executors of the estate of John Powell, who died intestate in 2015, and the claimant, Ms Powell, who sought to prove a lost will. The dispute centred on whether a copy of the will, dated 16 July 2007, could be admitted into probate in solemn form, despite the original being lost. The matter was heard in the Supreme Court of Victoria.
The court was tasked with determining whether the presumption of revocation arising from the loss of the original will could be rebutted, and if the contents of the will could be established by the copy provided. This involved assessing the circumstances under which the original will was executed, the authenticity of the copy, and whether there were any indications that the will had been revoked. The court also had to consider the legal principles governing the proof of wills in solemn form, particularly in the absence of the original document.
In delivering the judgment, the Supreme Court of Victoria found that the contents of the will could indeed be established by the copy provided, as it closely matched a copy held by the claimant's mother, who had witnessed the execution of the original will. The court accepted that the presumption of revocation could be rebutted by the evidence presented, which included witness statements and corroborative circumstances surrounding the execution of the will. However, due to the lack of the original or a more authentic copy, the court granted probate of the copy of the will in solemn form, but limited the grant until the original or a more authentic copy could be produced.
The court's final order was that probate be granted in solemn form of the copy of the will dated 16 July 2007, with the limitation that the grant remains in effect until the original or a more authentic copy of that will is proved.
The court was tasked with determining whether the presumption of revocation arising from the loss of the original will could be rebutted, and if the contents of the will could be established by the copy provided. This involved assessing the circumstances under which the original will was executed, the authenticity of the copy, and whether there were any indications that the will had been revoked. The court also had to consider the legal principles governing the proof of wills in solemn form, particularly in the absence of the original document.
In delivering the judgment, the Supreme Court of Victoria found that the contents of the will could indeed be established by the copy provided, as it closely matched a copy held by the claimant's mother, who had witnessed the execution of the original will. The court accepted that the presumption of revocation could be rebutted by the evidence presented, which included witness statements and corroborative circumstances surrounding the execution of the will. However, due to the lack of the original or a more authentic copy, the court granted probate of the copy of the will in solemn form, but limited the grant until the original or a more authentic copy could be produced.
The court's final order was that probate be granted in solemn form of the copy of the will dated 16 July 2007, with the limitation that the grant remains in effect until the original or a more authentic copy of that will is proved.
Orders
Orders of the court
Grant of probate in solemn form of copy of will dated 16 July 2007 limited until the original or a more authentic copy of that will is proved
Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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