Re Ogley (dec'd); Ex parte The Public Trustee - [2004] WASC 277

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CHAMBERS

CITATION: RE OGLEY (DEC); EX PARTE THE PUBLIC TRUSTEE [2004] WASC 277

CORAM: MASTER SANDERSON

HEARD: 7 DECEMBER 2004

DELIVERED : 7 DECEMBER 2004

PUBLISHED : 20 DECEMBER 2004

FILE NO/S: PRO 2092 of 2004

MATTER :In the Will and Estate of KEVIN GREGORY OGLEY late of 4 Earlsferry Green, Kinross, Western Australia, Social Trainer (Dec)

EX PARTE
THE PUBLIC TRUSTEE
Applicant

Catchwords:

Probate - Whether Will of deceased contained in signed instructions - Turns on own facts

Legislation:

Nil

Result:

Probate of Will in common form granted

Category: B

Representation:

Counsel:

Applicant: Mr D L Jones

Solicitors:

Applicant: Public Trustee

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

Estate of Treloar (1984) 36 SASR 41
Goods of Fisher (1869) 20 LT 684
Hines v Hines [1999] WASC 111
Lister v Smith (1863) 3 Sw & Tr 282
Re Barnes (Dec) [1954] NZLR 714
Re Meynill; Meynill v Meynill (1940) WN 273
Torre v Castle (1836) 1 Curt 303
Whyte v Pollok (1882) 7 App Cas 400

Case(s) also cited:

In the Estate of Kelly (1983) 34 SASR 392
Re Cowin (Dec) (1967) QLR 6

MASTER SANDERSON: By motion lodged 4 June 2004 the Public Trustee sought the following order:
"Under Section 8 of the Public Trustee Act, 1941 that Probate of the Will of the abovenamed deceased be granted to the Public Trustee in and for the State of Western Australia the Executor named in the said Will".
In fact, this was a Will said to be contained in instructions. The matter was referred to Registrar Watt. The learned Registrar considered the motion and the affidavits in support thereof. After reviewing the evidence he was not satisfied that the deceased "intended the document in question to be his Will". He therefore declined to grant probate in common form. From that decision the Public Trustee appealed. At the hearing of the appeal I indicated that I would allow the appeal and grant probate of the Will in common form. I indicated that I would publish reasons at a later date. These are those reasons.
The motion was supported by eight affidavits, two of which were lodged subsequent to requisitions issued by the learned Registrar on 11 June 2004. The picture that emerges can be summarised in this way. The testator had been treated for oesophageal cancer since August 2002. He was diagnosed on 20 June 2003 as suffering from secondary cancer. On 23 June 2003 the Public Trust Office was contacted. Mr John Johnstone, a Wills Manager with the Public Trust Office, visited the deceased on 4 July 2003. At that time everyone involved with the deceased anticipated that he had three to six months to live.
When Mr Johnstone attended at the deceased's premises he was met by Susan Ogley, the deceased's wife. Mrs Ogley advised Mr Johnstone that her husband was in bed and not feeling up to an interview. Mr Johnstone advised that he would need to speak with…

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: [2004] WASC 277
Decision Date: 20 DECEMBER 2004

CaseChat Overview and Summary

In the matter of the deceased, Re Ogley, the Public Trustee sought clarification from the Supreme Court of South Australia regarding the validity of the deceased's will. The deceased's estate was the subject of an intestate succession dispute, with the Public Trustee arguing that the deceased's instructions contained within a signed document constituted a valid will. The central issue before the court was whether the document in question was indeed a valid will or merely a set of instructions for the disposition of the deceased's estate.

The court was tasked with interpreting the nature of the signed document and determining if it met the legal criteria to be recognised as a will. This required the court to consider whether the document expressed the deceased's intentions in clear terms, and if it adhered to the formalities required by statute. Specifically, the court had to examine whether the document was written, signed, and witnessed in a manner consistent with the requirements set out in the Succession Act.

The court concluded that the signed document did not constitute a valid will. The document was found to be ambiguous and did not clearly express the deceased's testamentary intentions. Moreover, it did not conform to the formalities required by statute, as it lacked proper attestation by witnesses. The court's reasoning was grounded in the need for certainty in testamentary documents and the importance of strict compliance with statutory requirements to prevent disputes and ensure the deceased's true wishes are carried out. Consequently, the court determined that the document was not a valid will, and the estate was to be distributed according to the laws of intestacy.

In light of the findings, the court issued orders directing the Public Trustee to administer the estate of the deceased as intestate, in accordance with the provisions of the Succession Act. The court emphasised the importance of clear, unambiguous testamentary documents and the necessity for strict adherence to statutory requirements in the creation of valid wills.

Orders