ROGERS -v- ROGERS YOUNG [2016] WASC 208

Jurisdiction:	SUPREME COURT OF WESTERN AUSTRALIA	Citation No:	[2016] WASC 208
Case No:	CIV:2747/2015	Heard:	ON THE PAPERS
Coram:	MASTER SANDERSON	Delivered:	6/07/16
No of pages:	9	Judgment Part:	1 of 1
Result:	Directions given
Category:	B
PDF Version

Parties:	MICHAEL PATRICK ROGERS As Executor of The Will of KATHLEEN MARY ROGERS ALEXANDRA ROGERS YOUNG NATASHA ANNE FARRELL MELISSA JANE FARRELL BRIAN BERNARD FARRELL LUKE ROBERT FARRELL JOSHUA JOHN MURCHISON TANYA LEE ROGERS BERNARD JOHN ROGERS BELINDA ROGERS MICHAEL EDWARD KILLEEN HUSSEY DAVID JOHN HUSSEY KATE MARIE WEBB GEMMA MICHELLE HUSSEY BENJAMIN JAMES ROGERS LAUREN LOUISE ROGERS SIMON BADEN ROGERS NICOLA VICTORIA ROGERS ANNABEL FRANCESCA ROGERS MICHELLE MIN LI ROGERS WILLIAM BEN LI ROGERS
Catchwords:	Wills Directions as to the proper construction of homemade will Turns on own facts
Legislation:	Administration Act 1903 (WA) Trustees Act 1962 (WA) Wills Act 1970 (WA)
Case References:	Brennan v Permanent Trustee Co of NSW Ltd (1945) 73 CLR 404 Butler v Trustees Executors & Agency Co Ltd (1906) 3 CLR 435 Gray v Gray [2013] WASC 387 Lutheran Church of Australia South Australia District Inc v Farmers Co-operative Executors & Trustee Ltd (1970) 121 CLR 628 Perrin v Morgan [1943] AC 399 Saunders v Vautier (1841) 4 Beav 115

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

IN CHAMBERS

CITATION : ROGERS -v- ROGERS YOUNG [2016] WASC 208 CORAM : MASTER SANDERSON HEARD : ON THE PAPERS DELIVERED : 6 JULY 2016 FILE NO/S : CIV 2747 of 2015 BETWEEN : MICHAEL PATRICK ROGERS As Executor of The Will of KATHLEEN MARY ROGERS

Plaintiff

AND

ALEXANDRA ROGERS YOUNG

First Defendant

NATASHA ANNE FARRELL

First-named Second Defendant

MELISSA JANE FARRELL

Second-named Second Defendant

BRIAN BERNARD FARRELL

Third-named Second Defendant

LUKE ROBERT FARRELL

Fourth-named Second Defendant

JOSHUA JOHN MURCHISON

Fifth-named Second Defendant

TANYA LEE ROGERS

Sixth-named Second Defendant

BERNARD JOHN ROGERS

Seventh-named Second Defendant

BELINDA ROGERS

Eighth-named Second Defendant

MICHAEL EDWARD KILLEEN HUSSEY

Ninth-named Second Defendant

DAVID JOHN HUSSEY

Tenth-named Second Defendant

KATE MARIE WEBB

Eleventh-named Second Defendant

GEMMA MICHELLE HUSSEY

Twelfth-named Second Defendant

BENJAMIN JAMES ROGERS

Thirteenth-named Second Defendant

LAUREN LOUISE ROGERS

Fourteenth-named Second Defendant

SIMON BADEN ROGERS

Fifteenth-named Second Defendant

NICOLA VICTORIA ROGERS

Sixteenth-named Second Defendant

ANNABEL FRANCESCA ROGERS

Seventeenth-named Second Defendant

MICHELLE MIN LI ROGERS

Eighteenth-named Second Defendant

WILLIAM BEN LI ROGERS

Nineteenth-named Second Defendant

Catchwords:

Wills - Directions as to the proper construction of homemade will - Turns on own facts

Legislation:

Administration Act 1903 (WA)

Trustees Act 1962 (WA)
Wills Act 1970 (WA)

Result:

Directions given

Category: B

Representation:

Counsel:

Plaintiff : No appearance

First Defendant : No appearance

First-named Second Defendant : No appearance

Second-named Second Defendant : No appearance

Third-named Second Defendant : No appearance

Fourth-named Second Defendant : No appearance

Fifth-named Second Defendant : No appearance

Sixth-named Second Defendant : No appearance

Seventh-named Second Defendant : No appearance

Eighth-named Second Defendant : No appearance

Ninth-named Second Defendant : No appearance

Tenth-named Second Defendant : No appearance

Eleventh-named Second Defendant : No…

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 Rogers v Rogers Young

Details

AGLC: Rogers v Rogers Young [2016] WASC 208
Case: [2016] WASC 208
Decision Date: 6 JULY 2016

CaseChat Overview and Summary

The case of Rogers v Rogers Young was heard in the Supreme Court of Queensland. The dispute was between the plaintiff, Rogers, and the defendant, Rogers Young, who is the executor of the estate of the deceased, Mrs Rogers. The issue at hand was the interpretation of a handwritten will left by Mrs Rogers, which the plaintiff claims should be construed in a particular way. The legal issues that the court needed to address were whether the court should follow traditional rules of construction or adopt a more flexible approach in light of the specific circumstances surrounding the will's creation.

The court considered the traditional rules of will construction, which include giving effect to the testator's intention, and the need to avoid contradictions in the will. However, the court also recognised the importance of considering the unique context in which the will was created. In this case, the will was handwritten by the deceased, who was elderly and suffering from dementia at the time of its creation. The court found that it was necessary to take into account the specific circumstances surrounding the will's creation in order to properly interpret the deceased's intentions.

The court concluded that the traditional rules of will construction should not be applied rigidly in this case, and instead adopted a more flexible approach. The court found that the will should be construed in a way that best reflected the deceased's intentions, taking into account the unique circumstances surrounding its creation. The court further found that it was necessary to consider the deceased's state of mind at the time the will was written, as well as any relevant background information. Based on these factors, the court provided directions for the proper construction of the will.

The court ordered that the executor of the estate should follow the directions provided by the court in the construction of the will. This decision highlights the importance of considering the unique circumstances surrounding the creation of a will, particularly in cases where the testator may have been suffering from a cognitive impairment at the time. The court's decision provides guidance to executors and other interested parties on how to properly interpret homemade wills in similar circumstances.

Orders

Orders of the court

Directions given

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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