THE PUBLIC TRUSTEE -v- MURPHY & ORS [2004] WASC 191

Jurisdiction:	SUPREME COURT OF WESTERN AUSTRALIA	Citation No:	[2004] WASC 191
Case No:	CIV:2000/2003	Heard:	24 AUGUST 2004
Coram:	COMMISSIONER ZILKO SC	Delivered:	3/09/04
No of pages:	11	Judgment Part:	1 of 1
Result:	Informal will effective and valid Grant of letters of administration to the Public Trustee
Category:	B
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Parties:	THE PUBLIC TRUSTEE JEAN MURPHY THE SALVATION ARMY (WESTERN AUSTRALIA) PROPERTY TRUST MARION FARMER
Catchwords:	Wills Probate Requirements for proof of document purporting to embody testamentary intention of deceased
Legislation:	Administration Act 1903 Wills Act 1970, Pt III and Pt X
Case References:	In the Estate of Crossley; Crossley v Crossley [1989] WAR 227 In the matter of the Will of Lobato; Shields v Caratozzolo (1991) 6 WAR 1 The Public Trustee v Head [2003] WASC 91 Nil

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

IN CHAMBERS

CITATION : THE PUBLIC TRUSTEE -v- MURPHY & ORS [2004] WASC 191 CORAM : COMMISSIONER ZILKO SC HEARD : 24 AUGUST 2004 DELIVERED : 3 SEPTEMBER 2004 FILE NO/S : CIV 2000 of 2003 MATTER : Will and Estate of WALTER FARMER (Dec) BETWEEN : THE PUBLIC TRUSTEE

Plaintiff

AND

JEAN MURPHY

First Defendant

THE SALVATION ARMY (WESTERN AUSTRALIA) PROPERTY TRUST

Second Defendant

MARION FARMER

Third Defendant

Catchwords:

Wills - Probate - Requirements for proof of document purporting to embody testamentary intention of deceased

(Page 2)

Legislation:

Administration Act 1903

Wills Act 1970, Pt III and Pt X

Result:

Informal will effective and valid

Grant of letters of administration to the Public Trustee

Category: B

Representation:

Counsel:

Plaintiff : Ms L M Hudson

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):

In the Estate of Crossley; Crossley v Crossley [1989] WAR 227
In the matter of the Will of Lobato; Shields v Caratozzolo (1991) 6 WAR 1
The Public Trustee v Head [2003] WASC 91

Case(s) also cited:

Nil

(Page 3)

1 COMMISSIONER ZILKO SC: This action was commenced by writ of summons on 14 August 2003. The action originally named the first defendant and the second defendant. On 9 March 2004 an amended writ of summons and statement of claim were filed whereby the third defendant was joined as a party to the action. The amended statement of claim pleads that Walter Farmer ("the deceased"), who died on or about 11 March 2002, left a document dated 12 May 1995 purporting to embody his testamentary intentions ("the 1995 Will"). However, it further pleads that the 1995 Will did not comply with the requirements of Pt III of the Wills Act 1970 ("the Act") in that although the deceased signed it, there were no witnesses to his signature who attested and subscribed the 1995 Will in the presence of the deceased. The first defendant is a…

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 Murphy

Details

AGLC: The Public Trustee v Murphy [2004] WASC 191
Case: [2004] WASC 191
Decision Date

CaseChat Overview and Summary

The case of The Public Trustee v Murphy concerns the validity of a document dated 12 May 1995, which the plaintiff, The Public Trustee, alleges embodies the testamentary intentions of the deceased, Walter Farmer. The first defendant, Jean Murphy, is a sister of the deceased and was named as an executrix and legatee in the 1995 Will. The second defendant, The Salvation Army (Western Australia) Property Trust, is another legatee named in the 1995 Will. The third defendant, Marion Farmer, is also a sister of the deceased but was not named in the 1995 Will. The dispute centres on whether the 1995 Will, which was not witnessed, is valid and effective despite not complying with the requirements of the Wills Act 1970. The court was also asked to consider the validity of a second will dated 10 April 2001, which cannot be found or substantiated.
The primary legal issue before the court was whether the 1995 Will was a valid and effective testamentary document despite not being witnessed as required by the Wills Act 1970. The court had to determine if the deceased intended the document to constitute his will, as per the amended section 34 of the Act. The court also needed to consider the implications of the alleged 2001 Will and its potential revocation of the 1995 Will.
The court reasoned that while the 1995 Will did not comply with the witnessing requirements of the Act, it was written and signed by the deceased. The court found that the document was written in the deceased's handwriting, as evidenced by a comparison with a dividend statement dated 13 April 1994. The court concluded that it was satisfied on the balance of probabilities that the deceased intended the 1995 Will to constitute his will. Consequently, the court ruled that the 1995 Will was a valid and effective testamentary document. The court also found that the 2001 Will could not be substantiated and thus did not affect the validity of the 1995 Will. The court granted letters of administration to the plaintiff with the 1995 Will annexed.
The final orders of the court were that the will of Walter Farmer dated 12 May 1995 is of full force and validity and that there be a grant of Letters of Administration with the above will annexed to the plaintiff. The court will hear the plaintiff's counsel regarding costs.

Orders