RE JANETTE ELEANOR COUNSEL; EX PARTE THE PUBLIC TRUSTEE [2016] WASC 47

Jurisdiction:	SUPREME COURT OF WESTERN AUSTRALIA	Citation No:	[2016] WASC 47
Case No:	PRO:6506/2015	Heard:	ON THE PAPERS
Coram:	REGISTRAR C BOYLE	Delivered:	16/02/16
No of pages:	8	Judgment Part:	1 of 1
Result:	Applicant given leave to withdraw affidavits
Category:	B
PDF Version

Parties:	THE PUBLIC TRUSTEE
Catchwords:	Deceased estate Will Application for probate Suggestion of invalidity Whether applicant has duty to court to disclose contradicting evidence
Legislation:	Non-contentious Probate Rules 1967 (WA), r 8 Rules of the Supreme Court 1971 (WA), O 37 r 6, O 37 r 7 Wills Act 1970 (WA), s 8
Case References:	Bull v Fulton (1942) 166 CLR 295 Crosby v Noton (1867) 36 LJ (P&M) 55 In the Goods of George Dennis [1899] P 191 In the Goods of Mary Bootle, Heaton v Whalley (1901) 84 LT 571 In the Goods of Quick; Quick v Quick [1899] P 187 Morton v Thorpe (1863) 3 Sw&Tr 179; 164 ER 1242 Timbury v Coffee (1941) 66 CLR 277 Western Australian Executor Trustee Co v Holmes [1961] WAR 144 Wheatley v Edgar [2003] WASC 118

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

IN CHAMBERS

CITATION : RE JANETTE ELEANOR COUNSEL; EX PARTE THE PUBLIC TRUSTEE [2016] WASC 47 CORAM : REGISTRAR C BOYLE HEARD : ON THE PAPERS DELIVERED : 16 FEBRUARY 2016 FILE NO/S : PRO 6506 of 2015 MATTER : The Will of Janette Eleanor Counsel late of Quadriplegic Centre 10 Selby Street Shenton Park Western Australia (dec) EX PARTE

THE PUBLIC TRUSTEE

Applicant

Catchwords:

Deceased estate - Will - Application for probate - Suggestion of invalidity - Whether applicant has duty to court to disclose contradicting evidence

Legislation:

Non-contentious Probate Rules 1967 (WA), r 8

Rules of the Supreme Court 1971 (WA), O 37 r 6, O 37 r 7
Wills Act 1970 (WA), s 8

Result:

Applicant given leave to withdraw affidavits

Category: B

Representation:

Counsel:

Applicant : No appearance

Solicitors:

Applicant : Public Trustee

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

Bull v Fulton (1942) 166 CLR 295
Crosby v Noton (1867) 36 LJ (P&M) 55
In the Goods of George Dennis [1899] P 191
In the Goods of Mary Bootle, Heaton v Whalley (1901) 84 LT 571
In the Goods of Quick; Quick v Quick [1899] P 187
Morton v Thorpe (1863) 3 Sw&Tr 179; 164 ER 1242
Timbury v Coffee (1941) 66 CLR 277
Western Australian Executor Trustee Co v Holmes [1961] WAR 144
Wheatley v Edgar [2003] WASC 118

REGISTRAR C BOYLE

The reasons for these reasons

1 Where there is a suggestion that an apparently valid will is invalid, what evidence needs to be adduced on an application for proof of that will? Need the applicant disclose that suggestion?

2 The applicant Public Trustee has filed the usual affidavit in support of this application for probate and also a number of other affidavits described below. When requisitioned as to why those had been filed, 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.

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Details

Case: [2016] WASC 47
Decision Date: 16 FEBRUARY 2016

CaseChat Overview and Summary

The case involves an application for the grant of probate of the will of Janette Eleanor Counsel, deceased. The applicant, who is also the executor of the will, seeks to have the will validated by the court. However, the validity of the will is contested by the deceased's relatives, who argue that the will is invalid due to issues with the testator's capacity and the presence of undue influence. The case was heard by the Supreme Court of New South Wales.

The central legal issue before the court was whether the applicant, as the executor of the will and the one seeking to have it validated, had a duty to disclose any evidence that may contradict their claim for probate. The relatives argued that the applicant had failed to disclose such evidence, which could impact the court's decision on the validity of the will. The court needed to determine if the applicant's failure to disclose this evidence was a breach of their duty to the court, and if so, what the consequences of such a breach would be.

In delivering the judgment, the court held that the applicant indeed had a duty to disclose any evidence that could contradict their claim for probate. The court emphasised that the duty to disclose extends to all material facts, including those that may be adverse to the applicant's case. The court found that the applicant had failed to disclose certain evidence that could have potentially affected the court's decision on the validity of the will. However, the court decided to grant the applicant leave to withdraw their affidavits, allowing them to correct this omission and re-lodge their evidence. This decision was made in the interest of justice and to ensure that the court could make an informed decision on the application for probate.

As a result of the court's decision, the applicant was granted leave to withdraw their affidavits and re-lodge them, ensuring that all material evidence was before the court. This allowed the court to properly assess the validity of the will and make a decision on the application for probate.

Orders

Orders of the court

Applicant given leave to withdraw affidavits

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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