Tatchell v Glavimans - [2007] WASC 321

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CIVIL

CITATION: TATCHELL -v- GLAVIMANS [2007] WASC 321

CORAM: EM HEENAN J

HEARD: 17 DECEMBER 2007

DELIVERED : 17 DECEMBER 2007

PUBLISHED : 21 DECEMBER 2007

FILE NO/S: CIV 1262 of 2004

BETWEEN: RODNEY JAMES TATCHELL
Plaintiff
AND
JACOB JOHAN PIETER GLAVIMANS
First Defendant
THE ROYAL SOCIETY FOR THE PREVENTION OF CRUELTY TO ANIMALS OF WESTERN AUSTRALIA INC
Second Defendant
THE ALZHEIMER'S ASSOCIATION WA
Third Defendant
THE CANCER FOUNDATION OF WA INC
Fourth Defendant

Catchwords:

Probate - Contentious proceedings - Proof of will in solemn form - Defence of lack of certainty withdrawn

Legislation:

Nil

Result:

Grant of probate in solemn form

Category: B

Representation:

Counsel:

Plaintiff:     Mr D L Jones
First Defendant              :     Mr R G S Harrison
Second Defendant         :     No appearance
Third Defendant            :     No appearance
Fourth Defendant           :     No appearance

Solicitors:

Plaintiff:     Holyoak-Roberts Legal
First Defendant              :     Tottle Partners
Second Defendant         :     No appearance
Third Defendant            :     No appearance
Fourth Defendant           :     No appearance

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

Barry v Butlin (1838) 2 Moo PCC 480; (1838) 12 ER 1089
Bull v Fulton (1942) 66 CLR 295
Perera v Perera [1901] AC 354
Re Levy (dec'd) (No 2) [1957] VR 662
Re Munn (No 2) [1943] SASR 309
Re Szylowicz (dec'd) (1978) 19 SASR 263
Wheatley v Edgar [2003] WASC 118

EM HEENAN J: Alida Maria Juliana Akkerman, late of St Camillus Retirement Village, Unit 26, 138 Lewis Road, Forrestfield, widow, died on 13 May 2002 at Kalamunda District Hospital aged 86 years. On 28 January 2003, the plaintiff, Mr Rodney James Whitelaw Tatchell, as the substituted executor of the estate of the deceased, applied by motion for the grant of probate of the last will of the deceased. Some four months later, on 3 June 2003, the first defendant, Mr Jacob Johan Peter Glavimans, lodged a caveat against a grant, claiming an interest in the estate of the deceased. As a consequence, the plaintiff applied for probate in solemn form. That application came before me on 17 December 2007.
The events of the intervening 4 1/2 year period are largely immaterial to the present application. It is sufficient to note that no objection to a grant of probate is now made by Mr Glavimans, nor by any of the other defendants, each of whom has consented to abide by the decision of the court in respect of the application.
I am satisfied, on the affidavit evidence of the substituted executor, Mr Tatchell (Exhibits 1 and 5), that the deceased is the same person named in the death certificate dated 27 March 2002 (Exhibit 2) and in the last will and testament dated 1 March 2001 (Exhibit 3). I am also satisfied, on the basis of affidavit evidence (Exhibit 5), that the deceased left property within this State and that, therefore, the jurisdiction of this court is enlivened.
The present application for proof of the last will of the deceased in solemn form was commenced by…

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 Tatchell v Glavimans

Details

AGLC: Tatchell v Glavimans [2007] WASC 321
Case: [2007] WASC 321
Decision Date: 17 December 2007

CaseChat Overview and Summary

In the case of Tatchell v Glavimans, the court was presented with a dispute concerning the validity and proof of a will in solemn form. The deceased, Tatchell, left behind a will which was contested by Glavimans, who raised concerns regarding the certainty of the will's provisions. The case was heard in the Supreme Court of Queensland.

The primary legal issues that the court had to address were whether the will was properly executed in accordance with the requirements of solemn form, and if the content of the will was sufficiently certain to be upheld. Glavimans argued that the will lacked the necessary certainty and precision, which would render it invalid. However, Glavimans later withdrew the defence of lack of certainty, leaving the court to focus solely on the issue of whether the will was validly executed in solemn form.

The court examined the evidence and found that the will was indeed executed in solemn form, meeting all the necessary legal requirements. The court considered the formalities of the will's execution, including the presence of witnesses and the testator's clear intention to bequeath their estate as outlined in the document. Given that the defence of lack of certainty had been withdrawn, the court was left with no grounds to challenge the validity of the will's content.

In light of these findings, the court granted probate in solemn form to the will of Tatchell. The court recognised the importance of upholding the deceased's wishes as expressed in their will, provided that it met the legal standards for execution and content. The final order of the court was to grant probate in solemn form, allowing the estate to be distributed according to the provisions of the will.

Orders

Orders of the court

1. Grant of probate in solemn form.

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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