Warner v Martin - [2024] WASC 149

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CHAMBERS

CITATION:   WARNER -v- MARTIN [2024] WASC 149
CORAM:   HOWARD J
HEARD:   16 APRIL 2024
DELIVERED          :   16 APRIL 2024
PUBLISHED           :   1 MAY 2024
FILE NO/S:   CIV 1471 of 2022
BETWEEN:   IAN KEITH WARNER
First Plaintiff

GARRY EDMUND MARTIN
Second Plaintiff

AND

ROBERT MARTIN
First Defendant

BRUCE MARTIN
Second Defendant

GRAEME JOHN MARTIN
Third Defendant

Catchwords:

Application to prove will in solemn form - Following Deed of Settlement and Release plaintiffs given leave to proceed on an undefended basis - Whether testator had testamentary capacity - Will proved in solemn form

Legislation:

Rules of the Supreme Court 1971 (WA)

Result:

Application allowed

Category: B

Representation:

Counsel:

First Plaintiff	:	JB Hedges SC
Second Plaintiff	:	JB Hedges SC
First Defendant	:	No Appearance
Second Defendant	:	No Appearance
Third Defendant	:	No Appearance

Solicitors:

First Plaintiff	:	Minter Ellison
Second Plaintiff	:	Minter Ellison
First Defendant	:	Butlers Lawyers & Notaries
Second Defendant	:	Butlers Lawyers & Notaries
Third Defendant	:	Butlers Lawyers & Notaries

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

Banks v Goodfellow (1870) LR 5 QB 549
Saunders v The Public Trustee [2015] WASCA 203
Wheatley v Edgar [2003] WASC 118

HOWARD J:

(These reasons were delivered ex temporaneously and have been lightly edited from the transcript.)

By a writ endorsed with a statement of claim dated 13 May 2022, the plaintiffs seek to prove in solemn form, a will dated 30 November 2019 (2019 Will) of Betty Martin who died on 17 August 2021 (Deceased).
The following facts are taken from the evidence led by the plaintiffs at Trial and were not contested.
The Deceased was born 30 September 1927 and died in the State on 17 August 2021. She was 93 years old at the time of her death and had married only once. Her husband pre‑deceased her in March 2006. She had no children and had not entered into a de‑facto relationship.
She and her husband had in 1998 what can be described as 'mirroring' wills prepared by their solicitor, Mr Warner. This 'mirror' will of the Deceased's is referred to below as the '1998 Will'.
By those two wills, each had left their entire estate to each other, and then, on the death of the survivor, into 11 equal shares. Those were to be distributed:
1.to the Deceased's brother, William Martin, known as Harry Martin, and his wife Hazel Martin;
2.their five children, Robert Martin, who is the first defendant, Bruce Martin, the second defendant, Graham Martin, the third defendant, Margaret Harewood and Diane Blanchard;
3.the Deceased's husband's sister‑in‑law, Audrey Martin; and
4.her three children, Garry Martin, the second plaintiff, Alan Martin and Lindsay Martin.
I note that from the Deceased's husband's death in 2006, the company Takari Holdings 1998 Pty Ltd, which was the private company owned solely by the Deceased and her husband, was then directed by the Deceased and Mr Warner.
The plaintiffs were appointed joint executors and…

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 Warner v Martin

Details

AGLC: Warner v Martin [2024] WASC 149
Case: [2024] WASC 149
Decision Date: 1 MAY 2024

CaseChat Overview and Summary

The case of Warner v Martin involved an application to prove a will in solemn form. The will in question was made by a deceased individual, whose estate was subject to a Deed of Settlement and Release. The plaintiffs sought to have the will proved in solemn form, and they were granted leave to proceed on an undefended basis following the execution of the Deed of Settlement and Release. The primary issue before the court was whether the testator had testamentary capacity at the time the will was executed. This issue was central to determining whether the will could be validly proved in solemn form.

The court considered the principles of testamentary capacity and the evidence presented regarding the testator's mental state at the time of executing the will. Testamentary capacity requires that a testator understand the nature and effect of the act of making a will, comprehend the extent of their property, and know how they wish to dispose of it. The court examined medical evidence, witness statements, and other relevant documentation to assess the testator's capacity. Ultimately, the court was satisfied that the testator had testamentary capacity at the relevant time, based on the evidence provided.

After thorough deliberation, the court concluded that the testator did indeed have testamentary capacity and granted the application to prove the will in solemn form. The plaintiffs were thus successful in their application, and the will was admitted to probate. The court's decision was based on a careful evaluation of the evidence, ensuring that the will reflected the true intentions of the deceased. The final orders included the solemn proof of the will, allowing the estate to be distributed in accordance with the deceased's wishes.

Orders