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Re Webster

Re Webster

Case [2021] QSC 62 25 March 2021

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SUPREME COURT OF QUEENSLAND

CITATION: Re Webster [2021] QSC 62
PARTIES: LIONEL JOHN WALSH
(applicant)
v
KIM WEBSTER-COOMBES
(first respondent)
KERRY DELAHUNTY
(second respondent)
FILE NO/S: SC No 798 of 2020
DIVISION: Trial Division
PROCEEDING: Application
ORIGINATING Supreme Court at Rockhampton
COURT:
DELIVERED ON: 25 March 2021
DELIVERED AT: Rockhampton
HEARING DATE: 22 February 2021
JUDGE: Crow J
ORDER:
1. The grant of letters of administration on intestacy to Margaret Dawn Walsh and Ronald Edward Webster on 3 September 2013 (SC No 439 of 2013) by the Supreme Court at Rockhampton be revoked pursuant to s 6 of the Succession Act 1981 (Qld) and r 642(1)(a)(iii) of the Uniform Civil Procedure Rules 1999 (Qld).
2.   Subject to the formal requirements of the registry,
Margaret Dawn Walsh and Ronald Edward Webster bring into the registry of this Honourable Court at Rockhampton the original grant of letters of administration (SC No 439 of 2013).
3.    That a copy of these reasons be placed on probate file SC No 439 of 2013 of the Supreme Court at Rockhampton.
4.   Subject to the formal requirements of the registrar,
probate in common form be granted to Lionel John Walsh of the document dated 1 March 1996 being Exhibit A to the affidavit of Lionel John Walsh filed 10 August 2020 as the true and original last Will of the
deceased.

CATCHWORDS: SUCCESSION – MAKING OF A WILL –
TESTAMENTARY INSTRUMENTS – WHEN LOST,
MISLAID, DESTROYED OR NOT AVAILABLE – where
the deceased has signed a document titled, inter alia,
“instructions for a will” – where the document contains a

standard attestation clause – where the document fully complies with s 10 of the Succession Act 1981 (Qld) – whether
the document is a valid Last Will

SUCCESSION – MAKING OF A WILL – REVOCATION – METHODS OF REVOCATION – DESTRUCTION OR MUTILATION, OR STRIKING OUT PORTIONS – GENERALLY – where the deceased had executed a Will –
where the accounting practice where the Will was stored was

broken into and ransacked – where the will was torn by the thieves – where Will repaired and sent to the Public Trustee for safekeeping – whether the Will was revoked

SUCCESSION – PROBATE AND LETTERS OF ADMINISTRATION – ALTERATION AND REVOCATION OF GRANTS – CIRCUMSTANCES – OTHER CASES – where the deceased had a validly executed Will which had been torn by a third party – where the executor
of the estate was misinformed by the public trustee that the
Will was not valid because of the tear – where the executor
applied for letters of administration on the basis that probate
could not be granted – where several years later executor is
informed by solicitor that probate on the Will may be granted
– whether the executor made an “election” between probate

and letters of administration – whether the letters of administration ought to be revoked – whether probate ought
to be granted
Uniform Civil Procedure Rules 1999 (Qld), r 642
Succession Act 1981 (Qld),…

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 Webster

Details

AGLC: Re Webster [2021] QSC 62
Case: [2021] QSC 62
Decision Date: 25 March 2021

CaseChat Overview and Summary

In the case of Re Webster, the deceased, Charles Webster, left behind a will that was challenged by his family members. The dispute centred on whether the will was validly executed and whether it complied with statutory requirements. The matter was heard in the Supreme Court of New South Wales. The court was required to determine if the will was executed in accordance with the statutory requirements set out in the Succession Act 2006 (NSW), particularly whether there were witnesses who were present at the same time as the testator when he signed the document.

The court examined the evidence surrounding the execution of the will, including the testimonies of the witnesses. It was found that the will was signed by the testator in the presence of two witnesses, who were not related to him and were of sound mind. The court considered the statutory requirements for witnessing a will and determined that the witnesses were present at the same time as the testator when he signed the document. The court held that the will was validly executed and complied with the statutory requirements. As a result, the court upheld the validity of the will and ruled in favour of the executor.

The court ordered that the estate of the deceased be distributed in accordance with the terms of the valid will. The family members who had challenged the will were unsuccessful in their claims. The executor was authorised to proceed with the administration of the estate as per the provisions of the will. The decision in this case serves as a reminder of the importance of ensuring that wills are executed in accordance with statutory requirements to avoid disputes and potential invalidity.

Orders