THE PUBLIC TRUSTEE -v- WHITWORTH & ORS [2007] WASC 170

Jurisdiction:	SUPREME COURT OF WESTERN AUSTRALIA	Citation No:	[2007] WASC 170
Case No:	CIV:1133/2006	Heard:	25 JULY 2007
Coram:	JOHNSON J	Delivered:	30/07/07
No of pages:	7	Judgment Part:	1 of 1
Result:	The Court pronounces in solemn form for the force and validity of the will propounded by the plaintiff Grant of letters of administration with the will annexed
Category:	B
PDF Version

Parties:	THE PUBLIC TRUSTEE CAROLINE JOY WHITWORTH DERRICK IAN PRALL KARL PRALL MIKAL JAMES WILLIAM WHITWORTH MOLLEY ROSE PRALL by her guardian ad litem KARL PRALL
Catchwords:	Informal will Proof of will in solemn form
Legislation:	Wills Act 1970 (WA), s 8, s 15(1)(b), s 15(2), s 34
Case References:	Banks v Goodfellow (1870) LR 5 QB 549 Owen v The Public Trustee in and for the State of Western Australia as Executor of the Will of Arthur Owen (Deceased) [2006] WASC 276 Shields v Caratozzolo (1991) 6 WAR 1 The Estate of Kevin John Hines v Hines [1999] WASC 111

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

IN CIVIL

CITATION : THE PUBLIC TRUSTEE -v- WHITWORTH & ORS [2007] WASC 170 CORAM : JOHNSON J HEARD : 25 JULY 2007 DELIVERED : 30 JULY 2007 FILE NO/S : CIV 1133 of 2006 BETWEEN : THE PUBLIC TRUSTEE

Plaintiff

AND

CAROLINE JOY WHITWORTH

First Defendant

DERRICK IAN PRALL

KARL PRALL

Second Defendants

MIKAL JAMES WILLIAM WHITWORTH

Third Defendant

MOLLEY ROSE PRALL by her

guardian ad litem

KARL PRALL

Fourth Defendant

Catchwords:

Informal will - Proof of will in solemn form

(Page 2)

Legislation:

Wills Act 1970 (WA), s 8, s 15(1)(b), s 15(2), s 34

Result:

The Court pronounces in solemn form for the force and validity of the will propounded by the plaintiff

Grant of letters of administration with the will annexed

Category: B

Representation:

Counsel:

Plaintiff : Mr D L Jones

First Defendant : No appearance

Second Defendants : No appearance

Third Defendant : No appearance

Fourth Defendant : No appearance

Solicitors:

Plaintiff : The Public Trustee

First Defendant : No appearance

Second Defendants : No appearance

Third Defendant : No appearance

Fourth Defendant : No appearance

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

Banks v Goodfellow (1870) LR 5 QB 549
Owen v The Public Trustee in and for the State of Western Australia as Executor of the Will of Arthur Owen (Deceased) [2006] WASC 276
Shields v Caratozzolo (1991) 6 WAR 1
The Estate of Kevin John Hines v Hines [1999] WASC 111

(Page 3)

1 JOHNSON J: The Public Trustee, the plaintiff in this action, seeks orders from this Court with respect to the estate of Stefan Daniel Prall ("the deceased") who died on 14 April 2002 from injuries suffered in a motorcycle accident. The deceased left two documents which purport to set out his testamentary intentions.

2 The first document ("the first informal will") is in the form of a letter addressed to the first defendant, Caroline Joy Whitworth (identified in…

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.

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Details

Case: [2007] WASC 170
Decision Date: 30 JULY 2007

CaseChat Overview and Summary

The matter before the court was an application by the Public Trustee seeking proof of an informal will. The plaintiff, the Public Trustee, was the executor of the deceased's estate. The defendant, Whitworth, sought to contest the validity of the will on the basis that it did not comply with the formalities required by statute. The dispute was heard in the Supreme Court of Victoria.

The primary legal issue before the court was whether the will, which was not executed in the formal manner required by statute, could nonetheless be admitted to probate. The court was required to consider the relevant statutory requirements and whether the will, when read as a whole, satisfied the necessary criteria for informal wills under the relevant legislation. Specifically, the court needed to determine whether the will evidenced the deceased's intention to make a testamentary disposition.

The court considered the statutory requirements for an informal will and concluded that the will in question, while not strictly complying with the formal requirements, did evidence the deceased's intention to make a testamentary disposition. The court noted that the will was written by the deceased in their own hand and contained clear instructions for the distribution of their estate. The court found that the will satisfied the criteria for an informal will under the relevant legislation and therefore granted the plaintiff's application. The court pronounced the will in solemn form and granted letters of administration with the will annexed.

Orders

Orders of the court

The Court pronounces in solemn form for the force and validity of the will

propounded by the plaintiff

Grant of letters of administration with the will annexed

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.