PROUD -v- PROUD [2012] WASC 134
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2012] WASC 134 | |
| Case No: | CIV:2731/2011 | 26 MARCH, 11 APRIL 2012 | |
| Coram: | EM HEENAN J | 26/04/12 | |
| 30 | Judgment Part: | 1 of 1 | |
| Result: | Probate in solemn form of law of copy of lost will in form to be settled by a Probate Registrar limited until proof of the last will or a more authentic copy thereof Liberty to apply in relation to the form of the grant All parties' costs in the proceedings to be paid out of the estate | ||
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| PDF Version |
| Parties: | STEPHEN JAY PROUD SIMON PROUD MICHAEL JAMES PROUD NEIL PROUD JANE PROUD RUBEN JAY NKULULEKO PROUD by his Guardian ad litem CONNIE MURRAY LEWIS CHARLES PROUD by his Guardian ad litem CONNIE MURRAY NATASHA SUZANNA PROUD by her Guardian ad litem CONNIE MURRAY JAKE CHRISTOPHER MICHAEL McARDLE by his Guardian ad litem CONNIE MURRAY CONNIE MURRAY (as representative for unborn grandchildren and great-grandchildren of Collin Jay Proud (dec)) |
Catchwords: | Probate Proof in solemn form of lost will Solicitor's copy of will available Testamentary capacity Presumption of destruction with intention to revoke rebutted Anterior will duly executed Anterior will providing for children's spouses, grandchildren and great-grandchildren Joinder of infant beneficiaries under earlier will Order for appointment of representative defendant for unborn grandchildren and great-grandchildren Doubt as to effect of limitations on vesting Nature and duration of grant |
Legislation: | Wills Act 1970 (WA) |
Case References: | Cahill v Rhodes [2002] NSWSC 561 Corbett v Newey [1996] 3 WLR 729 Curley v Duff (1985) 2 NSWLR 716 Deeks v Greenwood [2011] WASC 359 Harris v Knight (1890) 15 PD 170 In the Estate of C R Phibbs (Deceased) [1917] P 93 McCauley v McCauley (1910) 10 CLR 434 Orifici as Executor of the Estate of Rosario Giuseppe Orifici v Orifici [2007] WASC 74 Re Webb, Smith v Johnston [1964] 1 WLR 509; [1964] 2 All ER 9 Sawyer v McKenzie [2011] WASC 215 Scarpuzza v Scarpuzza [2011] WASC 65 Welch v Phillips (1836) 1 Moo PC 302; 12 ER 828 Woodward v Golstone (1886) LR 11 App Cas 469 |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
- IN CIVIL
5 Collier Street, Wembley, in the State of Western Australia, retired, deceased BETWEEN : STEPHEN JAY PROUD
- SIMON PROUD
Plaintiffs
AND
STEPHEN JAY PROUD
SIMON PROUD
MICHAEL JAMES PROUD
NEIL PROUD
JANE PROUD
First Defendants
RUBEN JAY NKULULEKO PROUD by his Guardian ad litem CONNIE MURRAY
LEWIS CHARLES PROUD by his Guardian ad litem CONNIE MURRAY
NATASHA SUZANNA PROUD by her Guardian
ad litem CONNIE MURRAY
JAKE CHRISTOPHER MICHAEL McARDLE by his Guardian ad litem CONNIE MURRAY
Second Defendants
- CONNIE MURRAY (as representative for…
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Details
- AGLC
- Proud v Proud [2012] WASC 134
- Case
- [2012] WASC 134
- Decision Date
CaseChat Overview and Summary
The case involved a dispute over the will of a deceased person, with the primary issue being the proof in solemn form of a lost will. The will was not available, but a copy made by a solicitor was. The case was heard in the Supreme Court of South Australia. The central legal issues were whether the lost will could be proven in solemn form using the solicitor's copy, and if so, whether the testator had the necessary testamentary capacity to make the will, and if the presumption of the will's destruction with the intention to revoke could be rebutted.
The court found that the solicitor's copy of the will could be used to prove the lost will in solemn form, as it was the most authentic copy available. The court also held that the testator had testamentary capacity and that the presumption of destruction with the intention to revoke had been rebutted. The anterior will, which provided for the children's spouses, grandchildren, and great-grandchildren, was duly executed. The court further found that the infant beneficiaries could be joined under the earlier will, and ordered the appointment of a representative defendant for the unborn grandchildren and great-grandchildren. The court noted some doubt as to the effect of limitations on vesting and requested that the form of the grant be settled by a Probate Registrar. The court limited the grant until proof of the last will or a more authentic copy was provided.
The final orders of the court were that the will could be proved in solemn form using the solicitor's copy, limited until proof of the last will or a more authentic copy was provided. The court granted liberty to apply in relation to the form of the grant and ordered that all parties' costs in the proceedings be paid out of the estate.
The court found that the solicitor's copy of the will could be used to prove the lost will in solemn form, as it was the most authentic copy available. The court also held that the testator had testamentary capacity and that the presumption of destruction with the intention to revoke had been rebutted. The anterior will, which provided for the children's spouses, grandchildren, and great-grandchildren, was duly executed. The court further found that the infant beneficiaries could be joined under the earlier will, and ordered the appointment of a representative defendant for the unborn grandchildren and great-grandchildren. The court noted some doubt as to the effect of limitations on vesting and requested that the form of the grant be settled by a Probate Registrar. The court limited the grant until proof of the last will or a more authentic copy was provided.
The final orders of the court were that the will could be proved in solemn form using the solicitor's copy, limited until proof of the last will or a more authentic copy was provided. The court granted liberty to apply in relation to the form of the grant and ordered that all parties' costs in the proceedings be paid out of the estate.
Orders
Orders of the court
Probate in solemn form of law of copy of lost will in form to be settled by a Probate Registrar limited until proof of the last will or a more authentic copy thereof
Liberty to apply in relation to the form of the grant
All parties' costs in the proceedings to be paid out of the estate
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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