WALLIS -v- MILLER & ANOR [2006] WASC 7

Jurisdiction:	SUPREME COURT OF WESTERN AUSTRALIA	Citation No:	[2006] WASC 7
Case No:	CIV:2048/2004	Heard:	12 JANUARY 2005
Coram:	HASLUCK J	Delivered:	12/01/06
No of pages:	10	Judgment Part:	1 of 1
Result:	Decree made for probate of Will in solemn form
Category:	B
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Parties:	IRENE FRANCIS VALERIE WALLIS SANDRA IRENE MILLER DESMOND GOBBY
Catchwords:	Wills, probate and administration The making of a Will Construction and effect of testamentary dispositions Testamentary intention and capacity Will executed in presence of one witness only Decree made for grant of Will in solemn form
Legislation:	Wills Act 1970 (WA) s 8, s 34 Non-Contentious Probate Rules 1967 (WA) O 20A r 2
Case References:	Bailey v Bailey (1924) 34 CLR 558 Estate of Hines v Hines [1999] WASC 111 Mittoni v Bradley [2003] WASC 114 West Australian Trustee Executor and Agency Company Limited v Holmes (1961) WAR 144 Wheatley v Edgar (2003) WASC 118 Worth v Clasohm (1952) 86 CLR 439 Re Application of Brown; Estate of Springfield (1991) 23 NSWLR 535

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

IN CIVIL

CITATION : WALLIS -v- MILLER & ANOR [2006] WASC 7 CORAM : HASLUCK J HEARD : 12 JANUARY 2005 DELIVERED : 12 JANUARY 2006 FILE NO/S : CIV 2048 of 2004 MATTER : Will of BERYL VERONICA JAMES (also known as STAVELEY) late of 6 Palm Street, Bunbury in the State of Western Australia, School Teacher, (Dec) BETWEEN : IRENE FRANCIS VALERIE WALLIS

Plaintiff

AND

SANDRA IRENE MILLER

First Defendant

DESMOND GOBBY

Second Defendant

Catchwords:

Wills, probate and administration - The making of a Will - Construction and effect of testamentary dispositions - Testamentary intention and capacity - Will executed in presence of one witness only - Decree made for grant of Will in solemn form

(Page 2)

Legislation:

Wills Act 1970 (WA) s 8, s 34

Non-Contentious Probate Rules 1967 (WA) O 20A r 2

Result:

Decree made for probate of Will in solemn form

Category: B

Representation:

Counsel:

Plaintiff : Mr J C Curthoys

First Defendant : No appearance

Second Defendant : No appearance

Solicitors:

Plaintiff : Slee Anderson & Pidgeon

First Defendant : No appearance

Second Defendant : No appearance

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

Bailey v Bailey (1924) 34 CLR 558
Estate of Hines v Hines [1999] WASC 111
Mittoni v Bradley [2003] WASC 114
West Australian Trustee Executor and Agency Company Limited v Holmes (1961) WAR 144
Wheatley v Edgar [2003] WASC 118
Worth v Clasohm (1952) 86 CLR 439

Case(s) also cited:

Re Application of Brown; Estate of Springfield (1991) 23 NSWLR 535

(Page 3)

1 HASLUCK J: The plaintiff, Irene Francis Valerie Wallis (also known as Staveley), applied for grant of probate of the Will of Beryl Veronica James who died on 21 December 1999. The Will in respect of which a grant of probate was sought was a Will executed by the deceased, dated 1 June 1999, with the plaintiff being named as…

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 Wallis v Miller

Details

AGLC: Wallis v Miller [2006] WASC 7
Case: [2006] WASC 7
Decision Date

CaseChat Overview and Summary

The Supreme Court of Western Australia heard a case brought by Irene Francis Valerie Wallis (also known as Staveley), who sought a grant of probate for the Will of Beryl Veronica James, who had passed away on 21 December 1999. The Will in question was dated 1 June 1999 and named the plaintiff as executrix. The application for probate was contested by Sandra Irene Miller and Desmond Gobby, the first and second defendants, respectively. The defendants were served but did not enter appearances.

The court had to decide whether the Will executed by the deceased in the presence of one witness only could be considered a valid testamentary instrument and whether the deceased had testamentary capacity at the time the Will was executed. The Wills Act 1970 (WA) required the presence of at least two witnesses for the execution of a Will. However, section 34 of the Act states that a document purporting to embody the testamentary intentions of a deceased person is a Will of that person if the Supreme Court is satisfied that the deceased intended it to constitute their Will.

The court found that the deceased intended the subject Will to constitute her Will based on the circumstances in which it was executed and the evidence provided. The deceased asked Desmond Gobby to witness the Will and keep it in his safe, and she had completed the Will in her handwriting and signed it. The court also determined that the deceased had testamentary capacity at the time the Will was executed, as supported by the evidence provided by medical professionals.

The court decreed probate of the contents of the document dated 1 June 1999 in solemn form of law and ordered that the costs of the application be paid out of the estate of the deceased.

Orders