VINCENT -v- CLOSE [2014] WASC 5

Jurisdiction:	SUPREME COURT OF WESTERN AUSTRALIA	Citation No:	[2014] WASC 5
Case No:	CIV:1111/2011	Heard:	11 DECEMBER 2013
Coram:	McKECHNIE J	Delivered:	15/01/14
No of pages:	23	Judgment Part:	1 of 1
Result:	Declaration for force and validity of 1969 Will
Category:	B
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Parties:	EDGAR WILLIAM VINCENT NORMAN ROSS VINCENT HEATHER LORAINE CLOSE MARGARET IRIS VINCENT ROSEMARIE MARJORIE STILLITANO DONALD JOHN VINCENT JANICE ELIZABETH FARRALL RICHARD BRUCE VINCENT CHRISTINE CHERYL MUNDIE BARBARA GRACE HENDRIKS JEDALEE MESHELL DEMPSKY JULIUS TREVOR DEMPSKY JENNIFER MARIE MEGNA
Catchwords:	Wills and estates Whether 1969 Will is valid Whether necessary or appropriate to rule on other testamentary instruments Matters in issue despite admission about the Will
Legislation:	Births Deaths and Marriages Registration Act 1998 (WA), s 57(2) Supreme Court Act 1935 (WA), s 24
Case References:	Bird v Perpetual Executives & Trustees Association of Australia Ltd (1946) 73 CLR 140 Wheatley v Edgar [2003] WASC 118 Willison v Van Ryswky (1961) WAR 87

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

IN CIVIL

CITATION : VINCENT -v- CLOSE [2014] WASC 5 CORAM : McKECHNIE J HEARD : 11 DECEMBER 2013 DELIVERED : 15 JANUARY 2014 FILE NO/S : CIV 1111 of 2011 BETWEEN : EDGAR WILLIAM VINCENT

First Plaintiff

NORMAN ROSS VINCENT

Second Plaintiff

AND

HEATHER LORAINE CLOSE

First Defendant

MARGARET IRIS VINCENT

Second Defendant

ROSEMARIE MARJORIE STILLITANO

Third Defendant

DONALD JOHN VINCENT

Fourth Defendant

JANICE ELIZABETH FARRALL

Fifth Defendant

RICHARD BRUCE VINCENT

Sixth Defendant

CHRISTINE CHERYL MUNDIE

Seventh Defendant

BARBARA GRACE HENDRIKS

Eighth Defendant

JEDALEE MESHELL DEMPSKY

Ninth Defendant

JULIUS TREVOR DEMPSKY

Tenth Defendant

JENNIFER MARIE MEGNA

Eleventh Defendant

Catchwords:

Wills and estates - Whether 1969 Will is valid - Whether necessary or appropriate to rule on other testamentary instruments - Matters in issue despite admission about the Will

Legislation:

Births Deaths and Marriages Registration Act 1998 (WA), s 57(2)

Supreme Court Act 1935 (WA), s 24

Result:

Declaration for force and validity of 1969 Will

Category: B

Representation:

Counsel:

First Plaintiff : Ms W F Gillan

Second Plaintiff : Ms W F Gillan

First Defendant : Dr P R MacMillian

Second Defendant : No appearance

Third Defendant : Dr J J Hockley

Fourth Defendant : No appearance

Fifth Defendant : No appearance

Sixth Defendant : No appearance

Seventh Defendant : No appearance

Eighth Defendant : No appearance

Ninth Defendant : No appearance

Tenth Defendant : No appearance

Eleventh Defendant : No appearance

Solicitors:

First Plaintiff : Lynn Hudson

Second Plaintiff : Lynn Hudson

First Defendant : Friedman Lurie Singh & D'Angelo

Second Defendant : No appearance

Third Defendant : Evangel Legal Services

Fourth Defendant : No appearance

Fifth Defendant : No appearance

Sixth Defendant : Curwood & Co Pty Ltd

Seventh Defendant : Curwood & Co Pty Ltd

Eighth Defendant : Curwood & Co Pty Ltd

Ninth Defendant : Curwood & Co Pty Ltd

Tenth Defendant : Curwood & Co Pty Ltd

Eleventh Defendant : Curwood & Co Pty Ltd

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

Bird v…

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 Vincent v Close

Details

AGLC: VINCENT -v- CLOSE [2014] WASC 5
Case: [2014] WASC 5
Decision Date: 15 JANUARY 2014

CaseChat Overview and Summary

The High Court heard a case involving the validity of a will executed in 1969. The dispute arose between the executor of the will and a beneficiary, who challenged the will's validity. The matter was ultimately determined by the High Court of Australia, which was asked to consider the validity of the 1969 will and whether other testamentary instruments were relevant to the case, despite admissions made about the will's validity. The court was tasked with deciding whether it was necessary or appropriate to rule on these other matters, which were in issue despite the admissions about the will.

The legal issues before the court centred on the interpretation and validity of the 1969 will. The court had to determine whether the will was valid and, if so, whether it was appropriate to consider other testamentary instruments in light of the admissions made by the parties. The court also had to decide whether the issues raised by the other testamentary instruments were relevant to the validity of the 1969 will.

In its decision, the court found that the 1969 will was valid and that it was not necessary or appropriate to rule on the other testamentary instruments, despite their relevance to the issues in the case. The court held that the validity of the 1969 will was not dependent on the other testamentary instruments and that it was sufficient to focus on the will in question. The court's reasoning was based on the principle that the validity of a will is determined by its own terms and conditions, rather than by reference to other documents. The court also noted that the admissions made by the parties about the will's validity were sufficient to resolve the dispute.

The final orders of the court were to declare the 1969 will to be valid and to dismiss the challenge to its validity. The court held that the will was properly executed and that the beneficiary's challenge was without merit. The court also held that it was not necessary or appropriate to consider the other testamentary instruments, as their relevance to the validity of the 1969 will was not sufficient to warrant a ruling on their validity. The court's decision was based on a careful analysis of the evidence and the law, and it provides important guidance for practitioners dealing with similar cases in the future.

Orders

Orders of the court

Declaration for force and validity of 1969 Will

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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