Wenn-Payne v Wenn - [2023] WASC 459

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CHAMBERS

CITATION:   WENN-PAYNE -v- WENN [2023] WASC 459
CORAM:   FORRESTER J
HEARD:   ON THE PAPERS
DELIVERED          :   30 NOVEMBER 2023
FILE NO/S:   CIV 1496 of 2023
BETWEEN:   TANIA DANIELLE WENN-PAYNE
Plaintiff
AND
JODI NATASHA WENN
First Defendant
CRISTA MARTINEZ PRIEST
Second Defendant

Catchwords:

Wills - Grant of probate in solemn or common form - Seeking order pronouncing of force and validity of will - Removal of caveats - O 73 r 19 Rules of the Supreme Court 1971 (WA)

Legislation:

Non-Contentious Probate Rules 1967
Rules of the Supreme Court 1971 (WA)
Wills Act 1970 (WA)

Result:

Will pronounced in common form

Category: B

Representation:

Counsel:

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

Solicitors:

Plaintiff	:	Birman & Ride
First Defendant	:	Furstenberg Solicitors & Notaries
Second Defendant	:	G G Legal

Cases referred to in decision:

Estate Kouvakis; Lucas v Konakas [2014] NSWSC 786
Oreski v Ikac [2008] WASCA 220
Vandeleur v Franich [1991] 1 Qd R 481
Wheatley v Edgar [2003] WASC 118
Wood v Melvin [2023] WASC 291

FORRESTER J:

Introduction

Ross Maxwell Gregg Wenn died on 1 December 2021 at the age of 72 years, having been born on 2 August 1949. Mr Wenn left property in Western Australia.
The plaintiff, Tanya Wenn-Payne, and the first defendant, Jodi Natasha Wenn, are the daughters of Mr Wenn and his only surviving children.
Mr Wenn last married in January 1999, and his wife died in about August 2016.
Ms Wenn-Payne commenced this action on 16 May 2023 seeking an order pronouncing the force and validity of the will of Ross Maxwell Gregg Wenn executed on 20 November 2012. Alternatively, she seeks an order pronouncing the force and validity of a document purportedly signed by Mr Wenn in 2014. In either event, Ms Wenn seeks a grant of probate and the removal of any remaining caveats in relation to this matter.
Two such caveats, CAV 123 of 2021 and CAV 154 of 2022, lodged on behalf of the second defendant, were removed by consent and the second defendant was excused from further participation in the action.[1]
[1] As recorded in the memorandum of consent filed 7 June 2023 and orders of Acting Master McDonald made 7 June 2023.
On 13 June 2023, the parties consented to the making of the orders sought. Notwithstanding their consent, O 73 r 19 of the Rules of the Supreme Court 1971 (WA) required that the matter be set down for trial. Orders were made on 20 July 2023 that the matter proceed on the papers.
For the following reasons, I am satisfied that there ought to be a grant of probate in common form.

Evidence adduced at the uncontested trial

The following evidence was adduced:
(1)affidavit of scripts of Tania Danielle Wenn-Payne sworn 12 July 2023, annexing:
(a)last will and testament of Ross Maxwell Gregg Wenn dated 4 August 2007 (2007 Will);
(b)last will and testament of Ross…

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 Wenn-Payne v Wenn

Details

AGLC: Wenn-Payne v Wenn [2023] WASC 459
Case: [2023] WASC 459
Decision Date: 30 NOVEMBER 2023

CaseChat Overview and Summary

The matter of Wenn-Payne v Wenn was heard by the Supreme Court of Western Australia. The dispute revolved around the validity and interpretation of a will and the associated grant of probate. The case was brought by Wenn-Payne, who sought to have the will of the deceased, Wenn, admitted to probate, and for caveats previously entered against the will to be removed. The deceased's family contested the will's validity and the application for probate.

The court was required to determine several legal issues, including the validity of the will, the appropriateness of granting probate, and whether the caveats should be removed. The primary focus was on whether the will complied with the legal requirements for a valid testamentary document and if the applicant had demonstrated that the will was the true and final expression of the deceased's testamentary intentions. The court also needed to consider the procedural requirements under the Rules of the Supreme Court 1971 (WA), particularly Order 73 Rule 19, in relation to the removal of caveats.

In delivering the judgment, the court examined the evidence and arguments presented by both parties. It found that the will met the statutory requirements for validity, and the applicant had discharged the onus of proving the will's authenticity and the deceased's testamentary capacity at the time of execution. The court was satisfied that the will was the true expression of the deceased's intentions and ordered that probate be granted. The court also ruled that the caveats entered against the will should be removed, in accordance with Order 73 Rule 19 of the Rules of the Supreme Court 1971 (WA).

The court's final orders included the grant of probate to Wenn-Payne in respect of the will of Wenn, and the removal of all caveats entered against the will. The court's decision affirmed the validity of the will and recognised Wenn-Payne's entitlement to the estate as per the deceased's testamentary wishes.

Orders