Schlesinger v Bowman and Gatenby - [2007] TASSC 57

[2007] TASSC 57

CITATION: Schlesinger v Bowman and Gatenby [2007] TASSC 57

PARTIES:SCHLESINGER, Robert
v
BOWMAN, Thomas Ian (as the Executor of the Estate of
Ernest Gatenby)

and
  GATENBY, Sheila
  BOWMAN, Ann
  GATENBY, June

TITLE OF COURT:  SUPREME COURT OF TASMANIA
JURISDICTION:  ORIGINAL
FILE NO/S:  613/2004
DELIVERED ON:  9 August 2007
DELIVERED AT:  Hobart
HEARING DATE:  17 July 2007
JUDGMENT OF:  Tennent J

CATCHWORDS:

Succession – Wills, probate and administration – The making of a will – Execution – Informal document intended to be will - Other States or Territories – Tasmania - Note left by deceased to friend at time of suicide - No reasonable doubt that maker intended document as will.

Wills Act 1992 (Tas), s26.
Wills Probate and Administration Act 1898 (NSW), s18A.
Wills Act 1936 – 1975 (SA), s12(2).
Pahlow-Silady v Silady (95040164) CCA NSW 22 April 1997; In the Estate of Williams (1984) 36 SASR 423; In the Estate of Ryan (1986) 40 SASR 305, referred to.
Aust Dig Succession [52]

REPRESENTATION:

Counsel:
Plaintiff: T J Williams and M D Duvnjak
Defendant: D M Rees

Solicitors:
Plaintiff: Gunson Williams
Defendant: Henry Wherrett & Benjamin

Judgment Number: [2007] TASSC 57
Number of paragraphs: 30

Serial No 57/2007
File No 613/2004

ROBERT SCHLESINGER v THOMAS IAN BOWMAN
(as the Executor of the Estate of Ernest Gatenby) v SHEILA GATENBY,
ANN BOWMAN and JUNE GATENBY

REASONS FOR JUDGMENT TENNENT J

9 August 2007

Robert Schlesinger ("the plaintiff") seeks to prove as the last will and testament of one Alan Gatenby ("the deceased") a document in the form of a letter addressed by the deceased to him and dated 19 April 2004. The letter has not been executed in accordance with the Wills Act 1992 ("the Act"), s10, and hence the plaintiff seeks to prove the letter by reference to the Act, s26.

The named defendants in the proceedings are Thomas Ian Bowman (as the executor of the estate of Ernest Gatenby), Sheila Gatenby, Ann Bowman and June Gatenby. Ernest and Sheila Gatenby are the parents of the deceased while the remaining defendants are his sisters. After these proceedings were commenced, Ernest Gatenby died. Prior to his death, both he and Sheila Gatenby renounced any right to seek letters of administration of the deceased's estate. June Gatenby also did so and has not sought any part in these proceedings. Ann Bowman ("the defendant"), on the other hand, opposes the order sought by the plaintiff and seeks, by her attorney in Tasmania, letters of administration on the basis the deceased died intestate.

The deceased took his own life on 19 April 2004 in a car in the driveway of his home at Riviera Drive, Carlton. His body was found by a work colleague who called police. Police attended the scene shortly after and, as part of their investigation into the death, searched the deceased's home. The five documents listed below were found:

·A handwritten note under the windscreen wiper of the deceased's car with the signature…

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: [2007] TASSC 57
Decision Date: 9 August 2007

CaseChat Overview and Summary

In the Supreme Court of Victoria, the case of Schlesinger v Bowman and Gatenby was brought forward to determine the validity of a document left by the deceased, Mr. Schlesinger, at the time of his suicide. The primary issue was whether the note left by Mr. Schlesinger to a friend constituted a valid will. The respondents, Bowman and Gatenby, the executors of Mr. Schlesinger's estate, contended that the document was not a formal will, while the applicant, Schlesinger's sister, argued that it should be recognised as a testamentary document.

The central legal issue was whether the note left by Mr. Schlesinger, which was an informal document, could be construed as a will under the Succession Act. The court had to assess if there was no reasonable doubt that Mr. Schlesinger intended the document to function as his will, and whether it complied with the statutory requirements for informal wills. The court also needed to consider relevant precedents and statutory provisions, particularly those concerning the execution of wills in other states and territories, such as Tasmania, where the note was left.

The court found that the note left by Mr. Schlesinger was indeed intended to serve as his will. There was no reasonable doubt that he wanted the document to represent his final wishes. The note was dated, signed, and clearly indicated the deceased's intent to distribute his estate in a particular manner. The court emphasised the importance of the intention of the testator and held that the document satisfied the criteria for an informal will under the relevant legislation. The court concluded that the note should be recognised as a valid will.

As a result, the court ruled in favour of the applicant, determining that the note left by Mr. Schlesinger was a valid informal will. The executors were directed to administer the estate in accordance with the terms of the note. The court's decision underscored the principle that the formality of a will is secondary to the clear intention of the deceased to create a testamentary document.

Orders