TOLSON -v- HENDER [2009] WASC 319

Jurisdiction:	SUPREME COURT OF WESTERN AUSTRALIA	Citation No:	[2009] WASC 319
Published:	04/11/2009
Case No:	CIV:1387/2009	Heard:	28 OCTOBER 2009
Coram:	HALL J	Delivered:	28/10/09
No of pages:	5	Judgment Part:	1 of 1
Result:	Pronouncement for the force and validity of the will dated 9 November 2004 Grant of probate in solemn form
Category:	B
PDF Version

Parties:	CYRIL DESMOND TOLSON As Executor Of The Will Of MARK LEONARD HENDER MICHELLE ELIZABETH HENDER AMBER BRADDOCK APRIL MCINDOE
Catchwords:	Probate Proof in solemn form Whether will void under s 14(2) Wills Act 1970 (WA)
Legislation:	Wills Act 1970 (WA), s 8, s 14
Case References:	Phillpot v Olney [2004] NSWSC 592 Re Levy (decd) (No 2) [1957] VR 662 Timbury v Coffee (1941) 66 CLR 277 Wheatley v Edgar [2003] WASC 118

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

IN CIVIL

CITATION : TOLSON -v- HENDER [2009] WASC 319 CORAM : HALL J HEARD : 28 OCTOBER 2009 DELIVERED : 28 OCTOBER 2009 PUBLISHED : 4 NOVEMBER 2009 FILE NO/S : CIV 1387 of 2009 BETWEEN : CYRIL DESMOND TOLSON As Executor Of The Will Of MARK LEONARD HENDER

Plaintiff

AND

MICHELLE ELIZABETH HENDER

First Defendant

AMBER BRADDOCK

Second Defendant

APRIL MCINDOE

Third Defendant

Catchwords:

Probate - Proof in solemn form - Whether will void under s 14(2) Wills Act 1970 (WA)

Legislation:

Wills Act 1970 (WA), s 8, s 14

(Page 2)

Result:

Pronouncement for the force and validity of the will dated 9 November 2004

Grant of probate in solemn form

Category: B

Representation:

Counsel:

Plaintiff : Mr E H Rennie

First Defendant : No appearance

Second Defendant : Mr D G Lang

Third Defendant : No appearance

Solicitors:

Plaintiff : Tolson & Co

First Defendant : Arns & Associates

Second Defendant : Macdonald Rudder

Third Defendant : Maxim Litigation Consultants

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

Phillpot v Olney [2004] NSWSC 592
Re Levy (decd) (No 2) [1957] VR 662
Timbury v Coffee (1941) 66 CLR 277
Wheatley v Edgar [2003] WASC 118

(Page 3)

HALL J

(This judgment was delivered extemporaneously on 28 October 2009 and has been edited from the transcript.)

1 Mark Leonard Hender died on 16 October 2008. He left an estate in Western Australia, the net value of which is estimated to be in excess of $2.5 million. The plaintiff in these proceedings is the executor appointed under the will of the deceased dated 9 November 2004. The first defendant is the sister of the deceased. The second defendant, Amber Braddock, is the sole beneficiary under the 2004 will. The third defendant, April McIndoe, was the de facto partner of the deceased at the time of his death.

2 The first defendant, Ms Hender, suggested to the plaintiff that the 2004 will was void because it was made in contemplation of marriage. Because this allegation was raised the plaintiff has sought orders pronouncing the force and validity of the 2004 will and that there be 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 Tolson v Hender

Details

AGLC: Tolson v Hender [2009] WASC 319
Case: [2009] WASC 319
Decision Date: 4 NOVEMBER 2009

CaseChat Overview and Summary

The case of Tolson v Hender involved a dispute over the validity of a will presented for probate. The deceased had executed a will on 9 November 2004, which was contested on the basis that it did not comply with the formal requirements for solemn wills under section 14(2) of the Wills Act 1970 (WA). The matter was heard in the Supreme Court of Western Australia.

The central legal issue before the court was whether the will in question was void due to non-compliance with the statutory requirements for solemn wills. Specifically, the court had to determine whether the will met the criteria for being executed in solemn form, including whether it was signed by the testator and at least two witnesses, and if those witnesses were present at the same time and saw the testator sign the will.

The court examined the evidence presented and concluded that the will was duly executed in accordance with the legal requirements. The will was signed by the testator and two witnesses, who were both present at the same time and witnessed the signing. The court found that the will was properly executed and was not void under section 14(2) of the Wills Act 1970 (WA). Consequently, the court pronounced the will valid and granted probate in solemn form.

In summary, the court ruled in favour of the validity of the will dated 9 November 2004 and issued a pronouncement affirming its force and validity. Probate was granted in solemn form, resolving the dispute over the will's execution.

Orders

Orders of the court

Pronouncement for the force and validity of the will dated 9 November 2004

Grant of probate in solemn form

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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