Tatchell v Glavimans

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Probate - Contentious proceedings - Proof of will in solemn form - Defence of lack of certainty withdrawn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 writ filed on 26 February 2004. The various affidavits of scripts subsequently filed in the action reveal the existence of five wills of the deceased, made respectively on 4 October 1987, 16 September 1997, 23 February 1998, 30 August 1999 and 1 March 2001. The four wills which pre‑date the will of 1 March 2001 being propounded are expressly revoked by the last will. Furthermore, the deceased was clearly over the age of 18 years at the time of the will of 1 March 2001, and there is no evidence to suggest that that will has been revoked by any subsequent testamentary document, by marriage or by destruction or by any other act with animus revocandi (Exhibit 5).
The will of 1 March 2001, sought to be propounded in the present proceedings, appears to have been duly executed in the presence of two attesting witnesses. By this document the testatrix appointed her husband’s cousin, Johan Akkerman, as her executor. He died on 18 October 2002 prior to applying for a grant of probate (Exhibit 5). However, the will catered for this possibility and appointed Mr Tatchell, the plaintiff in the present proceedings, as substitute executor.
Mr Tatchell, in his affidavit sworn 28 March 2003 (Exhibit 5), deposes to his appointment as substitute executor of the will of 1 March 2001 as a result of the death of Johan Akkerman without having made an application for probate. He also deposes to his legal capacity to act as substitute executor, being over the age of 18 years, and otherwise entitled to apply for probate of the will. Upon a grant of probate, Mr Tatchell swears to administer the estate of the deceased according to law.
Annexed to Exhibit 5 is a statement of the assets and liabilities of the deceased. The estate comprises slightly more than $300,000 worth of moveable assets, a quarter of which are located outside of this State. There is no immovable property and total liabilities amount to $4,120.
The will of 1 March 2001 contains specific bequests of modest sums of money and personal effects to various family members and others, including to her step children and also to her brother, Mr Glavimans, the first defendant. The will then provides that the remainder of the estate, after the satisfaction of debts, funeral and testamentary expenses and taxes, is to be divided equally among various incorporated associations, including the second, third and fourth defendants.
To prove a will in solemn form, there must be sufficient evidence which establishes the validity of the will in question. In Wheatley v Edgar [2003] WASC 118, after examining the authorities, I canvassed the minimum requirements necessary to establish validity and thereby enable the grant of probate in solemn form. Essentially, what is required is adequate proof of due execution of the will: Re Levy (dec'd) (No 2) [1957] VR 662, 665 (Sholl J); Re Szylowicz (dec'd) (1978) 19 SASR 263; Re Munn (No 2) [1943] SASR 309. This in turn involves a determination, on the evidence adduced, as to the testamentary capacity of the deceased at the time of the will: Barry v Butlin (1838) 2 Moo PCC 480; (1838) 12 ER 1089; Perera v Perera [1901] AC 354.
First, as set out above, the will appears to have been duly executed. So much is deposed to in the affidavit of one of the attesting witnesses, Mr Tatchell, sworn 30 October 2006 (Exhibit 1). Secondly, there is no evidence before the court that the deceased lacked testamentary capacity at the time of the last will. As a consequence, a presumption of validity arises: Bull v Fulton (1942) 66 CLR 295, 343. This presumption is confirmed by the affidavit of the deceased's general practitioner, Dr Wendy Rappeport, sworn 13 December 2007 (Exhibit 6), which annexes two medical reports confirming the testamentary capacity of the deceased as at 1 March 2001.
As a consequence, I was satisfied as to the validity of the will and made the following orders:
1.An order pronouncing for the validity of the will of Alida Maria Juliana Akkerman, dated 1 March 2001, in which she is described as being of 77 Marangaroo Drive, Marangaroo in the State of Western Australia, Household Manager, and declarations:
(a)that the deceased is the person who died at Kalamunda District Hospital on 13 May 2002, as described in the death certificate (Exhibit 2 in these proceedings);
(b)that the will was formally executed;
(c)that the deceased possessed testamentary capacity at the time the will was executed;
(d)that the will has not since been revoked by any subsequent testamentary document, by marriage or by destruction or by any other act with animus revocandi;
(e)that the deceased was over the age of 18 years at the date the will was executed; and
(f)that the deceased died owning property within the jurisdiction of this court.
(g)that the plaintiff is the alternative executor named in the will and that the primary executor, Johan Akkerman, of Unit 8, 138 Lewis Road, Forrestfield, died without being able to apply for probate;
(h)that the plaintiff has sworn to administer the estate according to law; and
(i)that the plaintiff is a person over the age of 18 years.
2.The Probate Registry issue a grant in probate of that will in solemn form.
3.The costs of these proceedings to be agreed with the first defendant and the residuary beneficiaries, or otherwise taxed, be paid out of the estate of the deceased.

[2007] WASC 321

17 December 2007