The Public Trustee in and for the State of Western Australia v Cooke

[2005] WASC 167

THE PUBLIC TRUSTEE IN AND FOR THE STATE OF WESTERN AUSTRALIA -v- COOKE & ORS [2005] WASC 167

Jurisdiction:	SUPREME COURT OF WESTERN AUSTRALIA	Citation No:	[2005] WASC 167
Case No:	CIV:1422/2004	Heard:	27 JULY 2005
Coram:	MCKECHNIE J	Delivered:	27/07/05
No of pages:	4	Judgment Part:	1 of 1
Result:	Pronounce for the force and validity of Will and Codicil
Category:	B
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Parties:	THE PUBLIC TRUSTEE IN AND FOR THE STATE OF WESTERN AUSTRALIA ALAN JAMES CHRISTIAN COOKE MURRAY STUART CHARLES COOKE GILLIAN ELIZABETH ROEBUCK
Catchwords:	Wills Informality in Codicil Whether reflects testatrix intention Turns on own facts
Legislation:	Nil
Case References:	Nil Nil

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

IN CHAMBERS

CITATION : THE PUBLIC TRUSTEE IN AND FOR THE STATE OF WESTERN AUSTRALIA -v- COOKE & ORS [2005] WASC 167 CORAM : MCKECHNIE J HEARD : 27 JULY 2005 DELIVERED : 27 JULY 2005 FILE NO/S : CIV 1422 of 2004 MATTER : Will and Estate of DULCIE MARY LOUISE COOKE (dec'd) BETWEEN : THE PUBLIC TRUSTEE IN AND FOR THE STATE OF WESTERN AUSTRALIA

Plaintiff

AND

ALAN JAMES CHRISTIAN COOKE
First Defendant

MURRAY STUART CHARLES COOKE
Second Defendant

GILLIAN ELIZABETH ROEBUCK
Third Defendant

Catchwords:

Wills - Informality in Codicil - Whether reflects testatrix intention - Turns on own facts

(Page 2)

Legislation:

Nil

Result:

Pronounce for the force and validity of Will and Codicil

Category: B

Representation:

Counsel:

Plaintiff : Mr A Rorrison
First Defendant : No appearance
Second Defendant : No appearance
Third Defendant : No appearance

Solicitors:

Plaintiff : Public Trustee
First Defendant : No appearance
Second Defendant : No appearance
Third Defendant : No appearance

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

Nil

Case(s) also cited:

Nil


(Page 3)

1 MCKECHNIE J: Dulcie Mary Louise Cooke who latterly lived in Dianella died on 28 August 2003 at the age of 81. She had four children, three of whom are still living – her sons Dale, Murray and Alan.

2 As the result of instructions she gave in May 1989, the Public Trustee prepared a Will for Mrs Cooke which she executed on 23 May 1989. Apart from her three ruby and two diamond engagement ring which she left to her niece, Gillian, she bequeathed the balance of her property to her four children or their heirs. The Will was duly executed and has been tendered as Exhibit B in the trial. I have read the affidavits of the witnesses and am satisfied that the Will dated 23 May 1989 is indeed the last Will and Testament of Mrs Cooke.

3 For some reason now shrouded in mystery, a little over a week later, on 2 June 1989 Mrs Cooke purported to execute a handwritten document entitled "Codicil to my last will and testament signed on 23-5-89" and tendered as Exhibit C in the trial. This Will was not attested by two witnesses but by one only on 6 June 1989. In an affidavit which I have accepted as evidence in this trial, the witness deposes:

"3: Mrs Cooke executed the Document by signing her name at the foot or end thereof as the same now appears thereon in my presence. There was no other subscribing witness thereto.

4. Mrs Cooke was a patient at my place of employment. She asked me to witness the Document but I do not recall her commenting on the contents thereof or the circumstances which led her to sign it."

4 In view of the passage of time, this latter remark is unsurprising.

5 The Public Trustee has commenced action as executor of the Will seeking that the Court to pronounce upon the force and validity of the Will and/or the Will and Codicil.

6 In the statement of assets and liabilities prepared by the Public Trustee the estimated value of the chattels, being furniture and effects, is $500. The whole estate has an estimated value of $11,744.15.

7 None of the defendants have sought to oppose the application by the Trustee.

(Page 4)

8 It appears that the purported Codicil was found at Mrs Cooke's residence after she died. Nobody knew about it beforehand. The Public Trustee has not been able to locate either Catherine Mary Doyle, believed to be deceased, or Rachel, her daughter. Service of the writ was dispensed with by the Case Management Registrar on 14 September 2004.

9 I turn now to the Codicil. In one sense its terms are, to a degree, inconsistent with the terms of the Will executed just a week earlier. However, it seems clear that Mrs Cooke intended the Codicil to have effect as a testamentary disposition. The Codicil refers to the Will signed on 23 May 1989 and makes the comments:

"If there are shocks contained in my Will, I hope my sons are intelligent enough to accept that I have always done always those things that seemed best..."

10 Mrs Cooke advanced a coherent reason for the alteration of her affairs in the purported Codicil.

11 In all the circumstances I am satisfied, on the balance of probabilities, that Mrs Cooke's intentions are truly reflected in the Codicil notwithstanding the lack of a second attesting witness. I therefore:

(1) Pronounce for the force and validity of the Will dated 23 May 1989 and the Codicil dated 2 June 1989 of the deceased.

(2) Direct the Probate Registry to issue to the Public Trustee a grant of probate in solemn form.

(3) Order that the plaintiff's costs be taxed and then paid out of the estate.