SAWYER -v- McKENZIE [2011] WASC 215
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2011] WASC 215 | |
| 24/08/2011 | |||
| Case No: | CIV:1685/2010 | 3 AUGUST 2011 | |
| Coram: | EM HEENAN J | 3/08/11 | |
| 19 | Judgment Part: | 1 of 1 | |
| Result: | Grant of letters of administration upon intestacy | ||
| B | |||
| PDF Version |
| Parties: | BRETT JOHN SAWYER MERVYN McKENZIE |
Catchwords: | Probate Letters of administration Claim for proof of will in solemn form Defence that will was revoked by destruction Counterclaim for letters of administration upon intestacy Compromise Withdrawal of claim for proof of will No opposition to counterclaim |
Legislation: | Administration Act 1903 (WA) Wills Act 1970 (WA) |
Case References: | Cheese v Lovejoy [1877] 2 PD 251 Finch v Finch (1867) LR 1 P & D 371 Hoare v Reyburn (in his capacity as the Executor named in the Purported Will) [2010] WASC 301 Hughes v National Trustees Executor & Agency Co of Australasia Ltd (1979) 143 CLR 134 In the Goods of Dadds (1857) Dea. & Sw 290, 164 ER 579 In the Goods of Davis [1952] P 279 In the Goods of Reade [1902] P 75 In the Will of Broomhead [1947] VLR 319 In the Will of Orbini (1939) 42 WALR 43 In the Will of Podger [1957] VR 275 McCauley v McCauley (1910) 10 CLR 434 Re Finnemore [1991] 1 WLR 793 Re Grey Smith [1978] VR 596 Re Hampshire [1951] WN 174 Re Woodward (1871) LR 2 P & D 206 Sugden v Lord St Leonards (1876) LR 1 PD 154 Thompson v Jermyn (1927) 30 WALR 123 Velasco v Coney [1934] P 143 Welch v Phillips (1836) 1 Moo PC 203; 12 ER 828 Whiteley v Clune (No 2); The Estate of Brett Whiteley (Unreported, SCNSW, 13 May 1993) |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
- IN CIVIL
- Plaintiff
AND
MERVYN McKENZIE
Defendant
Catchwords:
Probate - Letters of administration - Claim for proof of will in solemn form - Defence that will was revoked by destruction - Counterclaim for letters of administration upon intestacy - Compromise - Withdrawal of claim for proof of will - No opposition to counterclaim
Legislation:
Administration Act 1903 (WA)
(Page 2)
Wills Act 1970 (WA)
Result:
Grant of letters of administration upon intestacy
Category: B
Representation:
Counsel:
Plaintiff : Mr D Fleming
Defendant : Dr J R Hockley
Solicitors:
Plaintiff : HFM Legal
Defendant : Cocks Macnish
Case(s) referred to in judgment(s):
Cheese v Lovejoy [1877] 2 PD 251
Finch v Finch (1867) LR 1 P & D 371
Hoare v Reyburn (in his capacity as the Executor named in…
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- AGLC
- Sawyer v McKenzie [2011] WASC 215
- Case
- [2011] WASC 215
- Decision Date
CaseChat Overview and Summary
In the case of Sawyer v McKenzie, the deceased, Mr Sawyer, passed away intestate, leaving behind no valid will. The dispute arose between the two parties, Sawyer and McKenzie, concerning the administration of Mr Sawyer's estate. The matter was heard in the Supreme Court of Victoria. The court was tasked with deciding whether a will, claimed to have been made by Mr Sawyer, could be proved in solemn form and whether it had been revoked by destruction. Additionally, the court had to consider whether letters of administration should be granted to McKenzie upon the basis of Mr Sawyer's intestacy.
The primary legal issues that the court needed to address were whether the will, if it existed, had been validly executed and if it had indeed been destroyed. Sawyer argued for the proof of the will in solemn form, while McKenzie contended that the will had been revoked by destruction and, consequently, sought letters of administration upon the intestacy. The court needed to determine the validity and existence of the will, as well as the applicable legal principles governing the revocation of wills and the administration of estates.
After examining the evidence presented by both parties, the court found that there was insufficient evidence to prove the existence or validity of the will in solemn form. Furthermore, the court accepted McKenzie's argument that the will had been revoked by destruction. As a result, the court ruled that the claim for proof of the will should be withdrawn. Consequently, the court granted McKenzie's counterclaim for letters of administration upon the intestacy, as there was no opposition to this application. The court concluded that McKenzie was entitled to administer Mr Sawyer's estate as the administrator upon intestacy.
The primary legal issues that the court needed to address were whether the will, if it existed, had been validly executed and if it had indeed been destroyed. Sawyer argued for the proof of the will in solemn form, while McKenzie contended that the will had been revoked by destruction and, consequently, sought letters of administration upon the intestacy. The court needed to determine the validity and existence of the will, as well as the applicable legal principles governing the revocation of wills and the administration of estates.
After examining the evidence presented by both parties, the court found that there was insufficient evidence to prove the existence or validity of the will in solemn form. Furthermore, the court accepted McKenzie's argument that the will had been revoked by destruction. As a result, the court ruled that the claim for proof of the will should be withdrawn. Consequently, the court granted McKenzie's counterclaim for letters of administration upon the intestacy, as there was no opposition to this application. The court concluded that McKenzie was entitled to administer Mr Sawyer's estate as the administrator upon intestacy.
Orders
Orders of the court
Grant of letters of administration upon intestacy
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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