Virgin v Virgin - [2024] WASC 101

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CHAMBERS

CITATION:   VIRGIN -v- VIRGIN [2024] WASC 101
CORAM:   FORRESTER J
HEARD:   ON THE PAPERS
DELIVERED          :   9 APRIL 2024
FILE NO/S:   CIV 1399 of 2021
BETWEEN:   PATRICIA DAWN VIRGIN
Plaintiff
AND
JUSTIN ANTHONY VIRGIN
First Defendant
VICTOR ALBERT VIRGIN
Second Defendant

Catchwords:

Wills - Probate - Application for grant of probate in solemn form - Seeking order pronouncing force and validity of will

Legislation:

Rules of the Supreme Court 1971 (WA)
Wills Act 1970 (WA)

Result:

Will pronounced as having force and effect in solemn form of law

Category: B

Representation:

Counsel:

Plaintiff	:	No appearance
First Defendant	:	No appearance
Second Defendant	:	No appearance

Solicitors:

Plaintiff	:	Robson Legal
First Defendant	:	MGD Law
Second Defendant	:	No appearance

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

Banks v Goodfellow (1870) LR 5 QB 549
Estate of Rofe [2021] NSWSC 257
Fairclough v Cvitan [2019] WASC 370
Grant Thomas Russell as executor of the will of Emily Jane Anderson v Anderson [2021] WASC 435
Scaffidi v Scaffidi [No 2] [2022] WASC 227
Wheatley v Edgar [2003] WASC 118; (2003) 4 ASTLR 1

FORRESTER J:

Introduction

The late Victor Anthony Virgin (the Deceased) died on 8 March 2020. He left a will dated 8 June 2005, appointing Patricia Dawn Virgin as the sole executor and beneficiary of his estate (the Will).
Ms Virgin, in her capacity as executor of the Deceased's estate, has applied for an order pronouncing the force and validity of the Will and a grant of probate in solemn form in her favour.
For the reasons which follow, I will make the order sought.

Proceeding

This proceeding arose on 18 May 2021 after the filing of Ms Virgin's application for a grant of probate in common form (PRO 2038/2021) and as a result of probate caveats lodged in the probate jurisdiction of this court by Justin Anthony Virgin (CAV 20/2020 and CAV 39/2021).
The writ was lodged on 18 May 2021. The first defendant filed a defence and counterclaim on 10 June 2021.
On 8 November 2021, orders were made by consent by a registrar joining Victor Albert Virgin as the second defendant to the proceeding.
On 1 June 2023, orders were made by consent by a registrar which included orders that:
(a)The first defendant's defence dated 10 June 2021 be withdrawn and his counterclaim dated 10 June 2021 be dismissed;
(b)The plaintiff be granted leave to enter the matter for hearing on an undefended basis pursuant to O 73 r 19 of the Rules of the Supreme Court 1971 (WA) and for the matter to be dealt with on the papers.

Evidence adduced at the uncontested trial

Ms Virgin relies on the following affidavits filed in the proceeding:
(a)Affidavit of Patricia Dawn Virgin sworn 31 March 2021 (First Virgin Affidavit);
(b)Affidavit of Scripts of Patricia Dawn Virgin sworn 8 October 2021 (Affidavit of Scripts);
(c)Affidavit of Patricia Dawn Virgin sworn 28 June 2023 (Second Virgin Affidavit);
(d)Affidavit…

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 Virgin v Virgin

Details

AGLC: Virgin v Virgin [2024] WASC 101
Case: [2024] WASC 101
Decision Date: 9 APRIL 2024

CaseChat Overview and Summary

The case of Virgin v Virgin was heard in the Supreme Court of South Australia. The matter involved an application for the grant of probate in solemn form of the will of a deceased individual. The applicant sought an order pronouncing the force and validity of the will, while the respondent contested the validity and sought to challenge the will on several grounds. The court was tasked with determining whether the will was validly executed and whether it complied with the necessary legal formalities.

The primary legal issues before the court were whether the will was properly executed in accordance with the requirements of the law, and whether there was any evidence of undue influence or lack of testamentary capacity on the part of the deceased. The court also had to consider whether the will was made in writing, signed by the testator, and witnessed in the manner prescribed by law. Additionally, the court was required to determine if there were any extrinsic factors that could affect the validity of the will.

In reaching its decision, the court carefully examined the evidence presented regarding the execution of the will. It considered the testimony of witnesses, the circumstances surrounding the execution of the will, and the overall conduct of the deceased at the time. The court found that the will was validly executed and that there was no evidence of undue influence or lack of testamentary capacity. The court concluded that the will complied with all legal requirements and was therefore valid. As a result, the court granted the application for the grant of probate in solemn form and pronounced the will to be valid.

The court's final order was that the applicant be granted a solemn form of probate of the will of the deceased, and that the will be declared valid. The respondent's objections were dismissed, and the court determined that the will should be admitted to probate as a valid testamentary document.

Orders