Re Maria Elizabeth Rudd - [2015] WASC 107

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CHAMBERS

CITATION: RE MARIA ELIZABETH RUDD; EX PARTE PRINCE [2015] WASC 107

CORAM: REGISTRAR C BOYLE

HEARD: ON THE PAPERS

DELIVERED : 26 MARCH 2015

FILE NO/S: PRO 1644 of 2014

MATTER :The Will and Estate of MARIA ELIZABETH RUDD late of Swan Cottages, 12 Adie Court, Bentley in the State of Western Australia, Home Duties, deceased
EX PARTE
ANNE PRINCE
Applicant

Catchwords:

Will - Informal claimed codicil - Observations on evidence required to support applications - Necessity for evidence of capacity on any application to prove an informal document - Turns on own facts

Legislation:

Non-contentious Probate Rules 1967 (WA), r 10
Wills Act 1970 (WA), s 8, s 10, s 26(f), s 32

Result:

Application allowed in part

Category: C

Representation:

Counsel:

Applicant: No appearance

Solicitors:

Applicant: Robertson Hayles Lawyers Pty Ltd

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

Banks v Goodfellow (1870) LR 5 QB 549
Briginshaw v Briginshaw (1938) 60 CLR 336
Bull v Fulton (1942) 66 CLR 295
Henwood v Public Trustee (1993) 9 WAR 22
In the Estate of Graham, deceased [1978] 20 SASR 198
Matthews v Warner (1798) 4 Ves 186; 31 ER 96
Oreski v Ikac [2008] WASCA 220
Re Estate of Frederick Raymond Reeve Perriman (dec) [2003] WASC 191
Scarpuzza v Scarpuzza [2011] WASC 65
West Australian Trustee Executor and Agency Co v Holmes (1961) WAR 144

REGISTRAR C BOYLE: Maria Elizabeth Rudd died on 7 February 2014 at the age of 95. She left three testamentary writings that her executor seeks to prove.
They are:
a)a typed will dated 21 April 2003;
b)a document dated 2 September 2003 and headed 'Adendum (sic) to last will and testament for Maria Elizabeth Rudd'; and
c)a document headed 'Myra's bequests as at 24 December 2011'.
The first two documents have been prepared using a word processor and appear to have been prepared by someone with sufficient skills to import decorative clip art to the documents but alas, much less understanding of what constitutes a good will or codicil.
The first two of these documents have been altered since execution, either by crossing out figures or adding in words. The third, as explained below, was produced by altering in ballpoint pen a printed document.
The applicant seeks that each of the three documents be admitted to probate in its altered form. None of the alterations to the first two has been made in compliance with s 10 of the Wills Act 1970 (WA). Neither document is therefore able to be admitted in its final altered form except by the exercise of the jurisdiction conferred by s 32 of the Wills Act.
For the reasons that follow, I find that each of the will of 20 April 2003 and the codicil of 2 September 2003 is entitled to be admitted to probate as executed. The informal alterations to each are not capable of being admitted. The document of 24 December 2011 is not capable of being…

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 Maria Elizabeth Rudd

Details

AGLC: Re Maria Elizabeth Rudd [2015] WASC 107
Case: [2015] WASC 107
Decision Date: 26 MARCH 2015

CaseChat Overview and Summary

The case before the court involved Maria Elizabeth Rudd, who sought to establish the validity of an informal codicil to her will. The dispute arose from conflicting claims regarding the will's contents, with the court tasked with determining the legal standards applicable to informal codicils and the evidence needed to support such claims. The court was required to decide whether the evidence presented by Rudd was sufficient to prove the existence and validity of the alleged informal codicil, and whether there was a need for additional evidence concerning the testatrix's capacity at the time of the codicil's creation.

The central legal issue before the court was the standard of proof required for establishing an informal codicil. Rudd argued that the evidence presented was sufficient to support her claim, while the opposing party contended that more stringent evidence was necessary, particularly concerning the testatrix's capacity. The court examined the legal principles governing informal codicils and the necessity of demonstrating the testatrix's capacity at the time of the alleged codicil's creation. The court concluded that the evidence provided by Rudd was not sufficient to establish the informal codicil on its own merits, as it did not sufficiently address the testatrix's capacity at the time of the codicil's creation. The court held that any application to prove an informal document requires evidence of the testatrix's capacity, and this evidence must be considered in the context of the specific circumstances of the case.

The court found that Rudd's evidence did not meet the required standard, and the claim for the informal codicil was dismissed. The court emphasised that the necessity for evidence of capacity is a critical factor in any application to prove an informal document, and that this requirement is not absolute but must be assessed on a case-by-case basis. The decision underscores the importance of providing comprehensive evidence when seeking to establish the validity of informal codicils, particularly concerning the testatrix's capacity at the relevant time. The final orders of the court included the dismissal of Rudd's claim for the informal codicil and the direction for further evidence to be provided if the case were to be revisited.

Orders