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Re Leonard Michial Quinlivan

Re Leonard Michial Quinlivan

Case [2013] WASC 286 2 August 2013

Probate

Informal will

Observations on evidence in such application

Succession Law

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RE LEONARD MICHIAL QUINLIVAN; EX PARTE QUINLIVAN [2013] WASC 286

Jurisdiction:	SUPREME COURT OF WESTERN AUSTRALIA	Citation No:	[2013] WASC 286
Case No:	PRO:3336/2013	Heard:	ON THE PAPERS
Coram:	REGISTRAR C BOYLE	Delivered:	2/08/13
No of pages:	9	Judgment Part:	1 of 1
Result:	Application refused
Category:	C
PDF Version

Parties:	TODD MICHIAL ROBERT QUINLIVAN
Catchwords:	Probate Informal will No evidence of deceased's intention Observations on evidence in such application Whether named executor obliged to apply
Legislation:	Supreme Court Rules 1971 (WA) Wills Act 1970 (WA)
Case References:	Baumanis v Praulin [1980] 25 SASR 423 Cahill v Rhodes [2002] NSWSC 561 Curley v Duff (1985) 2 NSW LR 716 Oreski v Ikac [2008] WASCA 220 Orifici as Executor of the Estate of Rosaria Giuseppe Orifici v Orifici [2007] WASC 74 Powell v Dinwoodie [2012] WASC 139 Proud v Proud [2012] WASC 134 Sawyer v McKenzie [2011] WASC 215 The Application of Kencalo (in the Estate of Ruth Buharoff), (Unreported, NSWSC, 23 October 1991) The Estate of Kevin John Hines v Hines [1999] WASC 111

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

IN CHAMBERS

CITATION : RE LEONARD MICHIAL QUINLIVAN; EX PARTE QUINLIVAN [2013] WASC 286 CORAM : REGISTRAR C BOYLE HEARD : ON THE PAPERS DELIVERED : 2 AUGUST 2013 FILE NO/S : PRO 3336 of 2013 MATTER : ESTATE OF LEONARD MICHIAL QUINLIVAN (DEC) EX PARTE

TODD MICHIAL ROBERT QUINLIVAN

Applicant

Catchwords:

Probate - Informal will - No evidence of deceased's intention - Observations on evidence in such application - Whether named executor obliged to apply

Legislation:

Supreme Court Rules 1971 (WA)

Wills Act 1970 (WA)

Result:

Application refused

Category: C

Representation:

Counsel:

Applicant : No appearance

Solicitors:

Applicant : Jackson McDonald

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

Baumanis v Praulin [1980] 25 SASR 423
Cahill v Rhodes [2002] NSWSC 561
Curley v Duff (1985) 2 NSWLR 716
Oreski v Ikac [2008] WASCA 220
Orifici as Executor of the Estate of Rosaria Giuseppe Orifici v Orifici [2007] WASC 74
Powell v Dinwoodie [2012] WASC 139
Proud v Proud [2012] WASC 134
Sawyer v McKenzie [2011] WASC 215
The Application of Kencalo (in the Estate of Ruth Buharoff) (Unreported, NSWSC, 23 October 1991)
The Estate of Kevin John Hines v Hines [1999] WASC 111

1 REGISTRAR C BOYLE: Leonard Michial (Mick) Quinlivan died on 17 November 2010 on a farm east of Esperance. He was 68 years old and died unexpectedly and suddenly.

2 The deceased was a man of substance: the statement of assets and liabilities filed with the application shows gross assets of approximately $13.4 million. Yet, following his death, no will could be found.

3 It does appear that in 1995 (that is, approximately 15 years before his death) Mr Quinlivan had been in touch with a solicitor who prepared and sent to him a draft will. The institute executor named in that draft will, the deceased's son Todd Michial Quinlivan, now applies for probate of a copy of that will pursuant to pt X of 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 Leonard Michial Quinlivan

Details

AGLC: RE LEONARD MICHIAL QUINLIVAN; EX PARTE QUINLIVAN [2013] WASC 286
Case: [2013] WASC 286
Decision Date: 2 AUGUST 2013

CaseChat Overview and Summary

In the matter of the estate of Leonard Michial Quinlivan, the application involved the validity of an informal will, with no clear evidence of the deceased's intention. The court was tasked with determining whether the named executor was obligated to proceed with the application. This case was heard in the Supreme Court of Queensland, where the deceased's daughter, Julie, contested the will's validity. She argued that there was insufficient evidence to demonstrate that her father intended the document to be his will. Julie contended that the document, which named her father's partner as the executor, did not meet the legal criteria for an informal will.

The central legal issue before the court was whether there was enough evidence to support the contention that the deceased intended the document to serve as his will. The court had to examine the document's contents and consider whether it complied with the requirements for an informal will under the Succession Act. Specifically, the court needed to determine if the document contained a clear expression of the deceased's testamentary intention. Furthermore, the court was required to address the obligation of the named executor in this context.

The court concluded that there was insufficient evidence to demonstrate that the deceased intended the document to be his will. The document in question did not clearly express the deceased's testamentary intention, and thus did not meet the criteria for an informal will. The court observed that while the executor was named in the document, there was no obligation on them to proceed with the application for probate. The court found that the daughter's application was not supported by sufficient evidence, and therefore dismissed the application. Consequently, the executor was not required to apply for probate.

Orders

Orders of the court

Application refused

Background

Background to the litigation

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Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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Citations

AGLC Citation

RE LEONARD MICHIAL QUINLIVAN; EX PARTE QUINLIVAN [2013] WASC 286

Most Recent Citation

Rowe v Storer (No 2) [2013] VSC 635

Cases citing this decision · 4 of 4 shown

Re Mangan
[2016] VSC 480 Para 1

…tamentary document.[9] [9] Rowe v Storer (No 2) [2013] VSC 635 (21 November 2013) [24] (McMillan J); Re Leonard Michial Quinlivan; Ex Parte Quinlivan [2013] WASC 286 (2 August 2013) [33]–[34] (C Boyle R).…
Jageurs v Downing (No 2)
[2015] VSC 509 Para 1

…admitted as an informal will.[17] [17] Rowe v Storer (No 2) [2013] VSC 635 (21 November 2013) [24]; Re Leonard Michial Quinlivabn; Ex Parte Quinlivan [2013] WASC 286 (2 August 2013) [33]–[34].…
Rowe v Storer (No 2)
[2013] VSC 635

…[25] Re Leonard Michial Quinlivabn; Ex Parte Quinlivan [2013] WASC 286 (2 August 2013), [33]–[34].…
Re David Stevenson Gregg (Dec)
[2013] WASC 325 Para 8

…In my recent published reasons in Quinlivan Re Michial Quinlivan; Ex parte Quinlivan [2013] WASC 286, I drew attention to the prevalence of applications for proof of informal wills where there is a document, but the evidence establishes no more than that the document is consistent with what was known of the deceas…

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Cases cited in this decision · 12 of 12 shown

Proud v Proud
[2012] WASC 134

…08] WASCA 220 Orifici as Executor of the Estate of Rosaria Giuseppe Orifici v Orifici [2007] WASC 74 Powell v Dinwoodie [2012] WASC 139 Proud v Proud [2012] WASC 134 Sawyer v McKenzie [2011] WASC 215 The Application of Kencalo (in the Estate of Ruth Buharoff), (Unreported, NSWSC, 23 October 1991) The Estate of Kev…
Powell v Dinwoodie
[2012] WASC 139

…2 NSW LR 716 Oreski v Ikac [2008] WASCA 220 Orifici as Executor of the Estate of Rosaria Giuseppe Orifici v Orifici [2007] WASC 74 Powell v Dinwoodie [2012] WASC 139 Proud v Proud [2012] WASC 134 Sawyer v McKenzie [2011] WASC 215 The Application of Kencalo (in the Estate of Ruth Buharoff), (Unreported, NSWSC, 23 O…
Sawyer v McKenzie
[2011] WASC 215

…of the Estate of Rosaria Giuseppe Orifici v Orifici [2007] WASC 74 Powell v Dinwoodie [2012] WASC 139 Proud v Proud [2012] WASC 134 Sawyer v McKenzie [2011] WASC 215 The Application of Kencalo (in the Estate of Ruth Buharoff), (Unreported, NSWSC, 23 October 1991) The Estate of Kevin John Hines v Hines [1999] WASC…
Oreski v Ikac
[2008] WASCA 220

…Baumanis v Praulin [1980] 25 SASR 423 Cahill v Rhodes [2002] NSWSC 561 Curley v Duff (1985) 2 NSW LR 716 Oreski v Ikac [2008] WASCA 220 Orifici as Executor of the Estate of Rosaria Giuseppe Orifici v Orifici [2007] WASC 74 Powell v Dinwoodie [2012] WASC 139 Proud v Proud [2012] WASC 134 Sawyer v McKenzie [2011] WAS…
Orifici as Executor of the Estate of Rosaria Giuseppe Orifici v Orifici
[2007] WASC 74

…2] NSWSC 561 Curley v Duff (1985) 2 NSW LR 716 Oreski v Ikac [2008] WASCA 220 Orifici as Executor of the Estate of Rosaria Giuseppe Orifici v Orifici [2007] WASC 74 Powell v Dinwoodie [2012] WASC 139 Proud v Proud [2012] WASC 134 Sawyer v McKenzie [2011] WASC 215 The Application of Kencalo (in the Estate of Ruth…
Equity Trustees Ltd v Levin
[2004] VSC 203

…structions, or a draft will or a 'trial run': In the Estate of Masters (Dec) , Hill v Plummer (1994) 33 NSWLR 446 at 455; Equity Trustees Ltd v Levin [2004] VSC 203. As Young CJ in Eq pointed out in Macey v Finch [2002] NSWSC 933 [23], even where a draft will has been prepared in accordance with the deceased's in…
Re Estate of Frederick Raymond Reeve Perriman (dec)
[2003] WASC 191

…e of Williams (Dec) (1984) 36 SASR 423 at 425; Re Application of Brown; Estate of Springfield (1991) 23 NSWLR 535 at 539; Re Estate of Perriman (Dec) [2003] WASC 191 [18]. [52] In Hatsatouris v Hatsatouris [2001] NSWCA 408 [56], Powell JA (with whom Priestley and Stein JJA agreed) identified three questions of fac…
Macey v Finch
[2002] NSWSC 933

…Masters (Dec) , Hill v Plummer (1994) 33 NSWLR 446 at 455; Equity Trustees Ltd v Levin [2004] VSC 203. As Young CJ in Eq pointed out in Macey v Finch [2002] NSWSC 933 [23], even where a draft will has been prepared in accordance with the deceased's instructions, it is quite common for testators to change their mind…
Cahill v Rhodes
[2002] NSWSC 561

…Baumanis v Praulin [1980] 25 SASR 423 Cahill v Rhodes [2002] NSWSC 561 Curley v Duff (1985) 2 NSW LR 716 Oreski v Ikac [2008] WASCA 220 Orifici as Executor of the Estate of Rosaria Giuseppe Orifici v Orifici [2007] WASC 74 Powell v Dinwoodie [2012] WASC 139 Proud v Proud [2012] WASC 134 Sawyer v McKenzie [2011] WAS…
Hatsatouris v Hatsatouris
[2001] NSWCA 408

…[52] In Hatsatouris v Hatsatouris [2001] NSWCA 408 [56], Powell JA (with whom Priestley and Stein JJA agreed) identified three questions of fact that arise under the New South Wales equivalent to s 34, those questions being:…
The Estate of Kevin John Hines v Hines
[1999] WASC 111

…11] WASC 215 The Application of Kencalo (in the Estate of Ruth Buharoff), (Unreported, NSWSC, 23 October 1991) The Estate of Kevin John Hines v Hines [1999] WASC 111…
Curley v Duff
14 ER 247

…Baumanis v Praulin [1980] 25 SASR 423 Cahill v Rhodes [2002] NSWSC 561 Curley v Duff (1985) 2 NSW LR 716 Oreski v Ikac [2008] WASCA 220 Orifici as Executor of the Estate of Rosaria Giuseppe Orifici v Orifici [2007] WASC 74 Powell v Dinwoodie [2012] WASC 139 Proud v Proud [2012] WASC 134 Sawyer v McKenzie [2011] WASC 21…

Legislation cited in this decision · 2

Supreme Court Rules 1971 (WA)
1 mention
Wills Act 1970 (WA)
1 mention