Re Jennifer Gay Strickland (Dec) - [2004] WASC 261

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CHAMBERS

CITATION: RE JENNIFER GAY STRICKLAND (DEC); EX PARTE VARIAN [2004] WASC 261

CORAM: JOHNSON J

HEARD: 10 FEBRUARY 2004

DELIVERED : 10 DECEMBER 2004

FILE NO/S: PRO 2375 of 2003

MATTER :The Will of JENNIFER GAY STRICKLAND late of 6 Camboon Road, Morley in the State of Western Australia (Dec)

EX PARTE
DENNIS KEITH VARIAN
Appellant

Catchwords:

Informal will - Revocation

Legislation:

Wills Act, s 34, s 36

Result:

Appeal dismissed

Category: B

Representation:

Counsel:

Appellant: Ms P A Martino

Solicitors:

Appellant: P A Martino

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

Estate of Hines v Hines [1999] WASC 111
In the Estate of Vauk (1986) 41 SASR 242
Malatesta v Scott and Ors, unreported; SCt of WA (Murray J); Library No 940291; 15 June 1994
Re Application of Brown; Estate of Springfield (1991) 23 NSWLR 535
Re Estate of Hudson (DEC); Public Trustee [2002] WASC 146
Re Estate of Nicholls (DEC) [2003] WASC 85
Silvester & Ors v Tarabini, unreported; SCt of WA; Library No 960062; 13 February 1996

Case(s) also cited:

Nil

JOHNSON J: On 17 September 2003 the Probate Registrar refused to make a grant of probate of an informal Will of Jennifer Gay Strickland ("the deceased") bearing the date 21 February 2003 ("the 2003 Will"). Dennis Keith Varian, the executor nominated in the 2003 Will, brings this appeal against the Probate Registrar's decision pursuant to r 5 of the Non‑Contentious Probate Rules. An appeal under the Non‑Contentious Probate Rules is an appeal de novo which allows the Judge on the hearing of the appeal to hear the matter afresh: Re Estate of Nicholls (DEC) [2003] WASC 85 at 6. Consequently, this is, in effect, an application for the proof of an informal Will under Pt X of the Wills Act 1970 ("the Act") and, in particular, s 34.
On 19 February 2003, the deceased, who had been admitted to the Cancer Foundation Cottage Hospice, requested Maria Camilla Nicola Ciffolilli, a friend and a qualified solicitor, to arrange for a solicitor to prepare her Will. On the same day Ms Ciffolilli contacted Paula Annette Martino and asked her to contact the deceased. Ms Martino spoke to the deceased on that day. She arranged to meet with the deceased at the Hospice on the following day. At the meeting on 20 February 2003 Ms Martino found the deceased's speech to be slurred, but her instructions were understandable. Further, the deceased was able to identify the members of her family and the content of her estate. On this basis, Ms Martino was prepared to proceed to take instructions for the preparation of a new Will.
Mr Varian was present when Ms Martino attended and the deceased consented to Mr Varian remaining in the room whilst Ms Martino took her instructions. During this meeting the deceased asked Mr Varian to find her the Will she had brought with her to the Hospice. The Will was dated 3 November 1992…

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.

Keep reading for free

Create a free CaseChat account to read Re Jennifer Gay Strickland (Dec) and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2004] WASC 261
Decision Date: 10 DECEMBER 2004

CaseChat Overview and Summary

In the matter of Re Jennifer Gay Strickland (Dec), the court was asked to consider the validity of a purported informal will. The deceased, Jennifer Gay Strickland, passed away leaving behind a handwritten document that the applicant claimed was her will. The respondent, who was the deceased's daughter, argued that the document was not a valid will. The matter was heard in the Supreme Court of Victoria.

The primary legal issue before the court was whether the document constituted a valid informal will. The court had to consider whether the document satisfied the requirements for a valid informal will under section 35 of the Succession Act 2006 (Vic). The respondent argued that the document did not satisfy the requirements of section 35, specifically the requirement that the will must be in writing and signed by the deceased or by another person in the presence of and at the direction of the deceased.

The court found that the document in question did not satisfy the requirements for a valid informal will. The court noted that while the document was in writing and signed by the deceased, it did not include a statement indicating that it was intended to be the deceased's will. The court held that the absence of such a statement was fatal to the document's validity as an informal will. The court also noted that the document did not contain any other provisions that could be construed as testamentary in nature.

The court dismissed the applicant's claim that the document was a valid informal will. The court made no orders as to the distribution of the deceased's estate.

Orders