THE PUBLIC TRUSTEE -v- HEAD & ORS [2003] WASC 91

Jurisdiction:	SUPREME COURT OF WESTERN AUSTRALIA	Citation No:	[2003] WASC 91
Published:	26/05/2003
Case No:	CIV:1927/2000	Heard:	7 MAY 2003
Coram:	BARKER J	Delivered:	7/05/03
No of pages:	15	Judgment Part:	1 of 1
Result:	Informal will effective and valid Grant of letters of administration with a copy of the will annexed to the Public Trustee
Category:	B
PDF Version

Parties:	THE PUBLIC TRUSTEE EDITH MARJORIE HEAD PATRICIA MARY OXFORD THE PUBLIC TRUSTEE IN AND FOR THE STATE OF NEW SOUTH WALES JOAN TASMA DUNCAN LORRAINE JOYCE POWELL ROMA JEAN PANTALL LORRI ANNE WESTERN CHERYLENE FRANCES PANTALL NORAL LEONARD PANTALL
Catchwords:	Wills Probate Testamentary capacity Document purporting to embody testamentary intention of deceased Whether informal will has effect pursuant to s 8 of the Wills Act 1970 (WA) Whether Public Trustee entitled to order to administer the estate pursuant to s 36 of the Administration Act 1903 (WA)
Legislation:	Administration Act 1903 (WA), s 36 Public Trustee Act 1941 (WA), s 8, s 12(1) Wills Act 1970 (WA), s 8, s 34
Case References:	In the Estate of Crossley; Crossley v Crossley [1989] WAR 227 In the Estate of Williams (Dec) (1984) 36 SASR 423 In the Matter of the Will of Lobato; Shields v Caratozzolo (1991) 6 WAR 1 James v Burdekin (1990) 3 WAR 298 Malatesta v Scott, unreported; SCt of WA (Murray J); Library No 940291; 15 June 1994

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

IN CIVIL

CITATION : THE PUBLIC TRUSTEE -v- HEAD & ORS [2003] WASC 91 CORAM : BARKER J HEARD : 7 MAY 2003 DELIVERED : 7 MAY 2003 PUBLISHED : 26 MAY 2003 FILE NO/S : CIV 1927 of 2000 BETWEEN : THE PUBLIC TRUSTEE

Plaintiff

AND

EDITH MARJORIE HEAD

PATRICIA MARY OXFORD

First Defendants

THE PUBLIC TRUSTEE IN AND FOR THE STATE OF NEW SOUTH WALES

Second Defendant

JOAN TASMA DUNCAN

Third Defendant

LORRAINE JOYCE POWELL

ROMA JEAN PANTALL

LORRI ANNE WESTERN

CHERYLENE FRANCES PANTALL

NORAL LEONARD PANTALL

Fourth Defendants

(Page 2)

Catchwords:

Wills - Probate - Testamentary capacity - Document purporting to embody testamentary intention of deceased - Whether informal will has effect pursuant to s 8 of the Wills Act 1970 (WA) - Whether Public Trustee entitled to order to administer the estate pursuant to s 36 of the Administration Act 1903 (WA)

Legislation:

Administration Act 1903 (WA), s 36

Public Trustee Act 1941 (WA), s 8, s 12(1)
Wills Act 1970 (WA), s 8, s 34

Result:

Informal will effective and valid

Grant of letters of administration with a copy of the will annexed to the Public Trustee

Category: B

Representation:

Counsel:

Plaintiff : Mr D L Jones

First Defendants : No appearance

Second Defendant : No appearance

Third Defendant : No appearance

Fourth Defendants : No appearance

Solicitors:

Plaintiff : Public Trustee

First Defendants : No appearance

Second Defendant : No appearance

Third Defendant : No appearance

Fourth Defendants : No appearance

(Page 3)

Case(s) referred…

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 The Public Trustee v Head

Details

AGLC: The Public Trustee v Head [2003] WASC 91
Case: [2003] WASC 91
Decision Date

CaseChat Overview and Summary

The plaintiff, the Public Trustee, filed an action seeking a determination as to the effectiveness of an informal will of Desmond Henry Pantall, deceased, dated 25 July 1992. The court was required to determine whether the informal will was valid and effective, and if so, whether the Public Trustee was entitled to a grant of letters of administration with a copy of the will annexed. The key legal issue was whether the informal will, which did not comply with the formal requirements of s 8 of the Wills Act 1970 (WA), could still be considered a valid will under s 34 of the Act. The court found that the deceased had the requisite testamentary capacity when he wrote the informal will and that he intended for it to constitute his will. The court concluded that the informal will was a valid testamentary document, and granted the Public Trustee letters of administration with a copy of the will annexed.

Orders