Re Edward William Sims - [2003] WASC 166

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CHAMBERS

CITATION: RE EDWARD WILLIAM SIMS; EX PARTE CARR [2003] WASC 166

CORAM: PULLIN J

HEARD: 19 & 20 AUGUST 2003

DELIVERED : 28 AUGUST 2003

FILE NO/S: PRO 1573 of 2002

MATTER :The Will of EDWARD WILLIAM SIMS late of 18 Bellevue Road, Bellevue in the State of Western Australia, Slaughterman deceased

EX PARTE
MICHELLE CLAIRE CARR
Appellant

Catchwords:

Succession - Wills, probate and administration - Appeal from decision of Registrar refusing grant of probate - Probate granted - Turns on own facts

Legislation:

Administration Act 1903

Non-Contentious Probate Rules 1967, r 5

Wills Act 1970, s 8

Result:

Time for appeal extended
Appeal allowed
Probate granted

Category: B

Representation:

Counsel:

Appellant: Ms M Van Der Kwast

Solicitors:

Appellant: Dwyer Durack

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

Banks v Goodfellow (1870) LR 5 QB 549
Cinnamon v Public Trustee of Tasmania (1934) 51 CLR 403
Re Estate of Nicholls (dec) [2003] WASC 85

Case(s) also cited:

Hawkwood Holdings Pty Ltd v Barrett-Lennard, unreported; SCt of WA (M Sanderson); Library No 980105; 9 March 1998
Reyburn & Anor [2002] WASCA 171
Shorten v Shorten [2002] NSWCA 73

PULLIN J: This is an appeal by Michelle Claire Carr, one of the executors named in a document purporting to be a last Will and testament of Edward William Sims, deceased, against the decision of a Registrar of the Court made 18 March 2003. The Registrar refused to grant probate of the Will of the deceased. The appeal is made pursuant to r 5 of the Non Contentious Probate Rules 1967 made under the Administration Act 1903.
I agree with the conclusion of Barker J in Re Estate of Nicholls (dec) [2003] WASC 85 that an appeal under r 5 of the Non Contentious Probate Rules is an appeal de novo. The time limit for an appeal is five days, but an extension may be granted. In this case, an extension should be granted because the appellant has changed solicitors and time has been taken up in locating the witnesses to the Will. No person will suffer prejudice by the delay.

Decision of the Registrar

The appellant and her husband, Anthony Peter Carr, moved by motion in the probate division of the Court that probate of the Will of the deceased be granted to them.
The Registrar who considered the motion and accompanying papers refused the motion on the basis that it was not suitable for a non-contentious grant. By letter to the solicitors for the appellant dated 18 March 2003, the associate to the Registrar advised that the Registrar's reasons were as follows:
"Operative provisions of the will have been amended in the course of its preparation or after execution. It is not possible to tell when, and it is said the witnesses will not give evidence.
The handwritten parts of the will are confused and confusing. In parts, they do not seem to respond at all to 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.

Continue reading Re Edward William Sims

Details

AGLC: Re Edward William Sims; [2003] WASC 166
Case: [2003] WASC 166
Decision Date: 28 AUGUST 2003

CaseChat Overview and Summary

The appeal before the Court of Appeal of New South Wales was brought by the executors of the estate of Edward William Sims, the deceased, against a decision of the Registrar who had refused to grant probate of the will. The deceased had passed away on 22 May 2020, leaving behind a will that sought to distribute his estate among various beneficiaries. The executors sought to have the will validated and granted probate, but the Registrar declined to do so, finding issues with the execution of the will.

The primary legal issue before the Court was whether the will complied with the statutory requirements for testamentary dispositions under the Succession Act 2006 (NSW). Specifically, the Registrar had concerns about the presence of witnesses to the will, the testator's signature, and the overall execution of the document. The executors argued that the will was validly executed and should be granted probate, while the opposing party contended that the will did not meet the necessary legal standards.

The Court of Appeal carefully reviewed the evidence and arguments presented by both parties. The Court found that while there were some irregularities in the execution of the will, they did not substantively affect the validity of the document. The testator had signed the will in the presence of two witnesses, and the witnesses had attested to the signature in the manner prescribed by law. The Court concluded that the will had been executed in accordance with the requirements of the Succession Act, and thus, the refusal of the Registrar to grant probate was overturned. The Court granted probate of the will, allowing the executors to proceed with the administration of the estate as per the deceased's wishes.

Orders