Wheatley v Edgar
[2003] WASC 229
WHEATLEY & ANOR -v- EDGAR & ORS [2003] WASC 229
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2003] WASC 229 | |
| Case No: | CIV:1961/2002 | 22 OCTOBER 2003 | |
| Coram: | PULLIN J | 22/10/03 | |
| 5 | Judgment Part: | 1 of 1 | |
| Result: | Order pronouncing for will in solemn form | ||
| B | |||
| PDF Version |
| Parties: | EDWARD JOHN WHEATLEY ROSEMARY VERNA WHEATLEY LYNITA KERYL EDGAR HEW EDGAR SAMUEL EDGAR (By His Guardian Ad Litem TERENCE RANDALL RITCHIE) |
Catchwords: | Succession Wills, probate and administration Proof of will in solemn form Turns on own facts |
Legislation: | Nil |
Case References: | Wheatley v Edgar [2003] WASC 118 Banks v Goodfellow (1870) LR 5 QB 549 In re Levy (decd) (No 2) [1957] VR 662 In re Levy (decd) [1953] VLR 652 In re Muirhead (decd) [1971] P 263 In Re Munn (No 2) [1943] SASR 309 In the Estate of Szylowicz (decd) (1978) 19 SASR 263 In the Will of Harrison (1905) 11 ALR (CN) 25d In the Will of Wilson (1897) 23 VLR 197 Public Trustee v Stretch [2002] WASC 147 Re Breen (decd) [1961] VR 522 Vandeleur v Francich [1991] 1 Qd R 481 West Australian Trustee Executor & Agency Co Ltd v Holmes [1961] WAR 144 Worth v Clasohm (1952) 86 CLR 439 |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
- IN CIVIL
MATTER : Will of HAZEL LOUISA LAWRANCE late of 31 Mackie Street, Victoria Park, Western Australia, Widow deceased BETWEEN : EDWARD JOHN WHEATLEY
- ROSEMARY VERNA WHEATLEY
Plaintiffs
AND
LYNITA KERYL EDGAR
First Defendant
HEW EDGAR
SAMUEL EDGAR (By His Guardian Ad Litem TERENCE RANDALL RITCHIE)
Second Defendants
Catchwords:
Succession - Wills, probate and administration - Proof of will in solemn form - Turns on own facts
(Page 2)
Legislation:
Nil
Result:
Order pronouncing for will in solemn form
Category: B
Representation:
Counsel:
Plaintiffs : Mr J G Young
First Defendant : Mr B J H Goetze
Second Defendants : Mr K E Yin
Solicitors:
Plaintiffs : Franklyn Simon Wheatley
First Defendant : Newton Vincent
Second Defendants : Angus Tibbits
Case(s) referred to in judgment(s):
Wheatley v Edgar [2003] WASC 118
Case(s) also cited:
Banks v Goodfellow (1870) LR 5 QB 549
In re Levy (decd) (No 2) [1957] VR 662
In re Levy (decd) [1953] VLR 652
In re Muirhead (decd) [1971] P 263
In Re Munn (No 2) [1943] SASR 309
In the Estate of Szylowicz (decd) (1978) 19 SASR 263
In the Will of Harrison (1905) 11 ALR (CN) 25d
In the Will of Wilson (1897) 23 VLR 197
Public Trustee v Stretch [2002] WASC 147
(Page 3)
Re Breen (decd) [1961] VR 522
Vandeleur v Francich [1991] 1 Qd R 481
West Australian Trustee Executor & Agency Co Ltd v Holmes [1961] WAR 144
Worth v Clasohm (1952) 86 CLR 439
(Page 4)
1 PULLIN J: In this case, the plaintiffs seek orders pronouncing for the force and validity of the will and testament dated 30 October 2000 of the deceased person, Hazel Louisa Lawrance, and seek a grant of probate of that will in favour of Edward John Wheatley and Rosemary Verna Wheatley.
2 The will was executed on 31 October 2000 at the office of Mrs Lawrance's solicitor, Messrs Wheatley and Sons, and it was executed on 31 October 2000 in the presence of two witnesses, who were each present with the deceased when she signed and when each of the witnesses signed, and Mrs Lawrance remained there during that process.
3 Instructions had been given by the deceased to Mrs Wheatley, who was a partner of the firm, and those instructions had been given on 23 October 2000. Mrs Lawrance died on 23 March 2002. Under the will, property in Western Australia was dealt with.
4 The background to this case is recorded in the reasons for decision of Heenan J in Wheatley v Edgar [2003] WASC 118. There is no need for me to repeat anything said by his Honour in those reasons. Suffice it to say that the only issue for me to decide is whether the deceased had testamentary capacity at the time that the will was executed, along with the other formalities which are necessary for the orders sought.
5 I have dealt with the formal matters, and in relation to testamentary capacity, the issue came up in this way: originally the application was made for probate in common form, but Registrar Dixon concluded that the will had to be proved in solemn form because of an affidavit he had before him of a Dr I L Carr, sworn 6 June 2002, which had been filed by the deceased's daughter, who is the first defendant in these proceedings.
6 Dr Carr's affidavit revealed that he was a medical practitioner and had treated the deceased, and he had expressed the opinion that the deceased did not have testamentary capacity in the last four years of her life.
7 It is clear, however, that the statements are of a general nature, and it also appears that in the year in question, that is in the year 2000, Dr Carr had seen the deceased on four occasions, the last of those being 18 August 2000. It is also evident from Dr Carr's affidavit that he was reluctant to see the deceased because of views that he had formed about her.
(Page 5)
8 The plaintiffs have led evidence of Mrs Wheatley, who met with the deceased and took instructions from the deceased, as I have indicated, on 23 October 2000 concerning the will and other matters. The evidence given by Mrs Wheatley satisfies me that the deceased was of sound mind and had testamentary capacity at the time that the will was executed, and that evidence is evidence which relates specifically to the time when the will was executed, whereas Dr Carr's statements, as I have said, are of a general nature. Dr Carr had not seen the deceased in October of 2000. Dr Carr was not called as a witness during this trial.
9 For those reasons, I am satisfied that the orders which are sought should be made, and I make those orders if there is a motion to that effect.
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