Spencer v Spencer

Case [2009] WASC 198

JURISDICTION     :   SUPREME COURT OF WESTERN AUSTRALIA

IN CIVIL

CITATION:   SPENCER -v- SPENCER [2009] WASC 198

CORAM:   EM HEENAN J

HEARD:   25 JUNE 2009

DELIVERED          :   25 JUNE 2009

PUBLISHED           :  20 JULY 2009

FILE NO/S:   CIV 1699 of 2009

MATTER                :The estate of the late Maureen Spencer late of 8 Stewart Street, Broome, Western Australia (Dec)

BETWEEN:   KELLY SPENCER

Plaintiff

AND

KELLY SPENCER
First Defendant

SCOTT WILLIAM SPENCER
Second Defendant

JEMMA LOUSE  STANTON
TOBY SPENCER STANTON By their next friend KENNETH OSCAR THOMAS
Third Defendants

PHILLIP GREEN
Fourth Defendant

Catchwords:

Probate - Letters of administration - Informal wills - Informal alterations - Revocation of grant of letters of administration - Grant of letters of administration with informal will, as informally altered, annexed

Legislation:

Administration Act 1903 (WA)
Wills Act 1970 (WA)

Result:

Revocation of grant of letters of administration of 1 December 2008 and incidental orders
Order for grant of letters of administration with the informal will of the deceased on 29 March 2007 and informally altered by manuscript before late December 2008 to the plaintiff with declaration as to its proper construction
Other incidental orders

Category:    B

Representation:

Counsel:

Plaintiff:     Dr P R MacMillan

First Defendant             :     No appearance

Second Defendant         :     No appearance

Third Defendants          :     No appearance

Fourth Defendant          :     No appearance

Solicitors:

Plaintiff:     Benjamin & De Lestang

First Defendant             :     Benjamin & De Lestang

Second Defendant         :     Benjamin & De Lestang

Third Defendants          :     Benjamin & De Lestang

Fourth Defendant          :     Benjamin & De Lestang

Case(s) referred to in judgment(s):

Barndon v Chelvanayagam [2006] WASC 118

Butler v Meriga [1904] QWN 71; [1904] St R Qd 248

Dalton v Dalton [2008] WASC 56

Dolan v Dolan[2007] WASC 249

Estate of Hines v Hines [1999] WASC 111

Hatsatouris v Hatsatouris [2001] NSWCA 408

In The Will Of Christian (1975) 25 FLR 89

Lewis v O'Loughlin [1971] 125 CLR 320

Oreski v Ikac [2007] WASC 195

Re Estate of Nicholls [2003] WASC 85

Re Harrison (1885) 30 Ch D 390

Re Proud (Dec) [1951] QWN 17

Re the Full Board of the Guardianship & Administration Board [2003] WASCA 268; (2003) 27 WAR 475

Re Ward (dec), Marsden v Ward (unreported, WASC, CIV 1860/97, Lib No 980180, 9 April 1998

Wheatley v Edgar [2003] WASC 118

  1. EM HEENAN J:  Maureen Spencer, late of 8 Stewart Street, Broome, in this State, died at St John of God Hospital, Murdoch on 29 September 2008.  She was then aged 61 years, having been born on 20 May 1947.  The cause of death as recorded in her death certificate was metastatic end stage breast cancer (nine months).

  2. Mrs Spencer had been married on 19 June 1966 to Anthony Gerald Spencer, but that marriage was later dissolved.  She was survived by her only two children, Kelly Spencer, born 29 April 1971 (the plaintiff and also the first defendant) and by Scott William Spencer, born on 16 October 1968 (the second defendant).

  3. Mrs Spencer left an estate comprising assets in Western…

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Details
AGLC
Spencer v Spencer [2009] WASC 198
Case
[2009] WASC 198
Decision Date

CaseChat Overview and Summary

In the case of Spencer v Spencer, Kelly Spencer, the plaintiff, sought to revoke the grant of letters of administration that was issued to her on the basis of the apparent intestacy of their mother, Maureen Spencer. The primary legal issue before the court was whether the grant of letters of administration should be revoked and whether the informal will dated 29 March 2007, as well as its subsequent informal alterations, should be recognized and enforced. The court had to determine if the informal will and its alterations were valid and if they should be considered in the administration of the estate.

The court considered whether the informal will dated 29 March 2007, and its subsequent informal alterations, could be recognized under the Wills Act. The court found that the informal will was indeed valid and should be given effect. The alterations to the document, although informal, were also found to have been validly executed. The court held that the grant of letters of administration should be revoked and replaced with a grant that included the informal will and its alterations. The court concluded that Kelly Spencer should be granted letters of administration with the informal will annexed.

The court's reasoning was based on the premise that the informal will and its alterations, while not strictly complying with the formalities required by the Wills Act, still represented the true intentions of the deceased. The court found that the informal will and its alterations were sufficiently clear and unambiguous to be given effect. The court also noted that the revocation of the original grant of letters of administration and the issuance of a new grant with the informal will annexed would ensure that the estate was administered in accordance with the deceased's true wishes.

The court ordered the revocation of the grant of letters of administration dated 1 December 2008 and granted letters of administration with the informal will of 29 March 2007, as informally altered, annexed to Kelly Spencer. The court also made several incidental orders to ensure the proper administration of the estate.

Orders

Orders of the court

Revocation of grant of letters of administration of 1 December 2008 and incidental orders

Order for grant of letters of administration with the informal will of the deceased on 29 March 2007 and informally altered by manuscript before late December 2008 to the plaintiff with declaration as to its proper construction

Other incidental orders

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

Consequently, Kelly Spencer and her brother, Scott William Spencer, decided that she alone should apply for letters of administration of their mother's estate and Scott William Spencer formally consented to his sister applying alone in that regard, although he was equally entitled to apply. That application was duly made and, consequently, a grant of letters of administration of the estate of Maureen Spencer in common form of law was granted to Kelly Spencer on the basis of this apparent intestacy. The grant is dated 1 December 2008 and upon that grant the legal estate in the property of the deceased vested in the administrator: Administration Act s 8 and Re the Full Board of the Guardianship & Administration Board [2003] WASCA 268; (2003) 27 WAR 475. The deceased's children, Kelly and Scott, each have children of their own who are all under age. Kelly Spencer has five children. They are the third defendants, Jemma Louise Stanton and Toby Spencer Stanton, whose father, Christopher Stanton, was Kelly Spencer's former de facto partner. She also has three other children by her present de facto partner. The other three children of Kelly Spencer who are not parties to these proceedings are:•Bailey James Dunstan born 7 July 2005;•Griffin William Dunstan born 20 September 2006; and•Kurtis Timothy Dunstan born 11 April 2008. As is apparent, Bailey James Dunstan and Griffin William Dunstan were both born before 29 March 2007 but Kurtis Timothy Dunstan was born after that date but before the death of the deceased. Of these five, only the third defendants are parties to these proceedings. They are represented by their next friend, Kenneth Oscar Thomas, the deceased's accountant, who was so appointed by order of the Master made 7 May 2009. Scott William Spencer has three infant children but none of them is a party to these proceedings. The reasons for that will appear shortly. Accordingly, the deceased was also survived by her eight grandchildren but none of the grandchildren would be entitled to any share in the distribution of her estate if she had, indeed, died intestate. Following the grant of the letters of administration of her mother's estate Kelly Spencer obtained further legal advice from other solicitors. As a result, she was advised that the informal paper of 29 March 2007, either as it originally stood or as it had apparently been altered, appeared to be an informal will of the deceased which could be made the subject of a grant of representation pursuant to Part 10 of the Wills Act s 32. Accordingly, as administrator of her mother's estate, Kelly Spencer commenced these proceedings by a writ of summons issued 15 April 2009 seeking an order for the revocation of the grant of letters of administration and, further, an order pronouncing that the apparent informal will of 29 March 2007 has full force and effect as the will of the deceased and, further, that the alterations made to that document have full force and effect. In addition, the plaintiff seeks an order for a grant of letters of administration with that informal will annexed to be made to her. There are variations in the claim to provide, in the alternative, for a grant of letters of administration of the paper writing of 29 March 2007, but without regard to its alterations, to be made to the plaintiff.