UCHINO v Vulin by her Guardian Ad Litem the Public Trustee

[2008] WASC 216

JURISDICTION     :   SUPREME COURT OF WESTERN AUSTRALIA

IN CIVIL

CITATION:   UCHINO -v- VULIN by her Guardian Ad Litem THE PUBLIC TRUSTEE [2008] WASC 216

CORAM:   McKECHNIE J

HEARD:   23 SEPTEMBER 2008

DELIVERED          :   23 SEPTEMBER 2008

FILE NO/S:   CIV 1016 of 2008

MATTER                :Estate of SOPHIE HARBUZ late of 3/120 Osborne Street, Joondana, in the State of Western Australia (Dec)

BETWEEN:   TANJA JULIE UCHINO

Plaintiff

AND

LORRAINE VICKI VULIN by her Guardian Ad Litem THE PUBLIC TRUSTEE
Defendant

Catchwords:

Wills and probate - Lost will - Turns on own facts

Legislation:

Wills Act 1970 (WA), s 34

Result:

Pronounce for the force and validity of lost will

Category:    B

Representation:

Counsel:

Plaintiff:     Dr J J Hockley

Defendant:     No appearance

Solicitors:

Plaintiff:     Deborah Pearman

Defendant:     No appearance

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

Nil

1. McKECHNIE J:  This is a case about a lost will.  The deceased attended a very experienced solicitor at the Citizens' Advice Bureau and gave him instructions for her will.  He wrote those instructions out and she signed them and he witnessed her signature.  He noted relevantly: '… and she is in full possession of her faculties.  She is a little unsteady but otherwise okay'.

2. The solicitor had the will prepared, keeping a copy, and posted it out to the deceased with instructions as to how to have it executed.  Her daughter and her granddaughter took her to a pharmacist and the will was, I am quite satisfied, duly executed at the pharmacy in an appropriate way.  It expressed her intentions in relation to her estate, as set out in the copy will which the solicitor retained, and that, at the time she executed that will, she intended that to be her last will and testament. 

3. For domestic reasons, that I need not go into here, eventually there came a time when her granddaughter searched for the will but was unable to find it.  Although a white envelope was found which had 'Will' in the deceased's handwriting on the outside, there was nothing in the envelope.  It is now the position that the will, which I am satisfied was executed as I have said, is lost.  However, I am also satisfied that the notes that the solicitor kept and the draft will that he prepared do in fact reflect the original but now lost will. 

4. That foregoing brief statement of facts is taken from the affidavits which have been received into evidence and verified this morning by the solicitor and by the deceased's granddaughter.  I accept those affidavits as truth of what is contained within them.  I accept their oral evidence.

5. The defendant has notified an intention to abide the decision of the court.

6. This matter falls to be decided under the Wills Act 1970 (WA) s 34 as it applied at the time that the will was executed, it now of course having undergone substantial changes. Section 34 requires me to be satisfied that the document purporting to embody the testamentary intentions of the deceased person is the will of that person, notwithstanding that it has not been executed in accordance with s 8, and that the deceased intended the document to constitute their will. I am satisfied that the will that was executed was the will of the deceased. She intended it to constitute her will and that is reflected in the draft as I have earlier outlined.

7. I pronounce for the force and validity of the last and lost will of the late Sophie Harbuz, signed and witnessed after 16 March 2004, evidence of which is provided by the unsigned copy attached to the affidavit of Scripts and the affidavit of the solicitor.  I direct the probate registrar to issue a grant of probate in solemn form in favour of the plaintiff in respect of that will.