Rizzi v Holborow
[2023] WASC 400
•19 OCTOBER 2023
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CHAMBERS
CITATION: RIZZI -v- HOLBOROW [2023] WASC 400
CORAM: WHITBY J
HEARD: 19 OCTOBER 2023
DELIVERED : 19 OCTOBER 2023
FILE NO/S: CIV 1399 of 2023
BETWEEN: ALISSA MAREE RIZZI
Plaintiff
AND
VALERIE HOLBOROW
First Defendant
KELDA HOLBOROW-KINEAVY
Second Defendant
Catchwords:
Wills - Probate - Proof in solemn form - Whether court should pronounce will in solemn form - Order 73 r 19 Rules of the Supreme Court 1971 (WA)
Legislation:
Rules of the Supreme Court 1971 (WA)
Wills Act 1970 (WA)
Result:
Will pronounced in solemn form
Category: B
Representation:
Counsel:
| Plaintiff | : | R Nash |
| First Defendant | : | No appearance |
| Second Defendant | : | No appearance |
Solicitors:
| Plaintiff | : | De Roberto Legal |
| First Defendant | : | Forbes Kirby |
| Second Defendant | : | Spyker Legal |
Case(s) referred to in decision(s):
Estate Kouvakas; Lucas v Konakas [2014] NSWSC 786
Fairclough v Cvitan [2019] WASC 370
The Public Trustee v Gerritsen [2012] WASC 201
Tolson v Hender [2009] WASC 319
Vandeleur v Franich (1991) 1 Qd R 481
Wheatley v Edgar [2003] WASC 118
Williams v Schwarzback [No 2] [2016] WASC 43
WHITBY J:
(This judgment was delivered extemporaneously and has been edited from the transcript.)
The plaintiff commenced this action by writ of summons for proof of a will in solemn form.
The plaintiff seeks an order that the last will and testament of Triscilla Faith Holborow (the deceased) executed on 5 July 2022 (2022 will) is valid and has force in solemn form.
All parties who have an interest under the 2022 will, have either agreed to the making of a solemn form grant of the 2022 will, or have filed a notice of intention to abide the outcome in the action.
The action has proceeded to trial today on an unopposed basis, pursuant to O 73 r 19 of the Rules of the Supreme Court 1971 (WA).
For the following reasons, I am satisfied the orders sought by the plaintiff should be made.
Background
The plaintiff is the de‑facto partner of the deceased.
The first defendant is the mother of the deceased and the second defendant is the sister of the deceased.
The deceased died on 20 October 2022 at the age of 49 years old.
The deceased executed her last will on 5 July 2022. The will made the plaintiff the sole executor and beneficiary of the deceased's estate.
In December 2022, the plaintiff filed an application for probate of the 2022 will in common form. The plaintiff received a notice of requisition from the Supreme Court of Western Australia notifying her that the first defendant had lodged a caveat on probate.
On 20 April 2023, the plaintiff issued a writ of summons seeking orders pronouncing in solemn form of law for the force and validity of the 2022 will.
The first defendant filed a defence and counterclaim in the action opposing the orders sought by the plaintiff on the basis that the deceased lacked testamentary capacity at the time she executed the 2022 will and that the plaintiff had exerted undue influence over the deceased with respect to preparation of the 2022 will. By the counterclaim, the first defendant sought an order pronouncing for the force and validity of a will executed by the deceased on 29 July 2020.
The second defendant filed a notice of intention to abide in this action.
Orders were made by consent referring the matter to mediation which resulted in the parties reaching an agreement as to the proof of the 2022 will in solemn form. On 6 October 2023, further orders were made by consent that the first defendant have leave to withdraw her defence and discontinue her counterclaim and for the matter to be set down for trial on an unopposed basis with the plaintiff's evidence to be adduced by affidavit.
The evidence adduced at the uncontested trial
The evidence adduced at the trial comprised the following:
(1)an affidavit sworn on 5 October 2023 by a subscribing witness, Roslyn Leanne Hipper, bookkeeper of the deceased; and
(2)an affidavit sworn on 11 October 2023 by the other subscribing witness, Kylie Bronwyn Taylor, a carer of the deceased;
(3)an affidavit sworn on 13 October 2023 by the plaintiff annexing:
(a)a copy of the 2022 will;
(b)a copy of the death certificate of the deceased;
(c)a copy of the heads of agreement; and
(d)a draft statement of the deceased's assets and liabilities as at the date of her death;
and
(4)an affidavit sworn on 17 October 2023 by the plaintiff annexing the executed heads of agreement in counterparts.
Relevant principles of law
A court cannot make grant of probate in solemn form simply by consent of the parties. The plaintiff is required to prove that the will is formally valid and was made by the deceased at a time when he or she had the requisite capacity to do so. However, it is a relevant consideration where the parties have agreed upon orders for proof of a will in solemn form. In Wheatley v Edgar,[1] EM Heenan J said:
… when a compromise is reached between the parties to a contested action for proof in solemn form, it is open to the court to decree in favour of the will either in common form or in solemn form but, for solemn form to be decreed sufficient evidence to satisfy the minimum requirements.
[1] Wheatley v Edgar [2003] WASC 118 [26]; applied in Tolson v Hender [2009] WASC 319 [4] (Hall J); The Public Trustee v Gerritsen [2012] WASC 201 [14] (Beech J); Fairclough v Cvitan [2019] WASC 370 [26] (Kenneth Martin J).
In order to make a grant in solemn form, the court must be satisfied, on the evidence adduced by the party seeking to propound the will, of the formal validity of the will.[2]
[2] Vandeleur v Franich (1991) 1 Qd R 481, 484 ‑ 485 (Macrossan CJ); applied in Wheatley v Edgar [25]; Williams v Schwarzback [No 2] [2016] WASC 43 (Chaney J).
The party seeking to propound the will may take advantage of the rule that the will properly executed is, in the absence of evidence to the contrary, presumed to have been made by a person who is competent and understanding.[3]
[3] Wheatley v Edgar [24].
In circumstances where the parties who have an interest in the estate appear before the court or have had notice of the proceedings, the court has greater latitude than it otherwise would have in assessing the evidence.[4]
[4] Estate Kouvakas; Lucas v Konakas [2014] NSWSC 786 [251].
The 2022 will
The 2022 will has not been revoked by a subsequent will, marriage or termination of marriage or by destruction or otherwise.
The 2022 will was executed validly in accordance with s 8 of the Wills Act 1970 (WA). The independent witnesses to the 2022 will were Roslyn Leanne Hipper and Kylie Bronwyn Taylor.
Roslyn Leanne Hipper was the deceased's bookkeeper from around 2017 to her passing in October 2022. Kylie Bronwyn Taylor was one of the deceased's carers from around June 2022 to her passing in October 2022.
The respective affidavits of those witnesses confirm the circumstances in which the deceased came to execute the 2022 will. The deceased executed the will on 5 July 2022 at Ballajura Medical Centre by signing her name as it appears now in the presence of both subscribing witnesses, who both signed the will in the presence of the deceased and of each other.
Disposition
Having considered the uncontradicted evidence as to the due execution of the will, the court is entitled to rely upon the presumptions that the deceased had testamentary capacity and that she knew and approved of the contents of the 2022 will.
Further, all parties who have an interest in the estate of the deceased have either agreed to the making of a grant in solemn form of the 2022 will or have filed a notice of intention to abide the decision of the court.
For these reasons, I am satisfied that a grant of probate in solemn form of the 2022 will, as proposed by the parties, should issue.
Final orders
I make the pronouncement, declaration and orders which reflect the minute of proposed orders filed by the plaintiff on 16 October 2023, as follows:
(1)That the will and testament of the late Triscilla Faith Holborow dated 5 July 2022 ('Will') is pronounced as having force and effect in solemn form of law as the last will of the late Triscilla Faith Holborow ('Deceased').
(2)A Probate Registrar of this Court settle a grant in solemn form of law of the Will to the plaintiff as executor.
(3)The plaintiff's costs of this action from 14 September 2023, except in so far as they are of unreasonable amount or have been unreasonably incurred, be paid from the estate of the Deceased on an indemnity basis.
I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
CB
Associate to the Hon Justice Whitby
19 OCTOBER 2023
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