WINGROVE -v- BURLES [2014] WASC 450

Jurisdiction:	SUPREME COURT OF WESTERN AUSTRALIA	Citation No:	[2014] WASC 450
Case No:	CIV:2864/2013	Heard:	26 NOVEMBER 2014
Coram:	MITCHELL J	Delivered:	26/11/14
No of pages:	8	Judgment Part:	1 of 1
Result:	Grant of probate in solemn form of will dated 14 December 2007
Category:	B
PDF Version

Parties:	ROYSTON WINGROVE RITA BURLES TONY WINGROVE
Catchwords:	Wills Probate Application for proof of will in solemn form Subsequent will executed when deceased lacked testamentary capacity
Legislation:	Nil
Case References:	Buckley v Buckley [2011] WASC 184 Hoare v Reyburn [2010] WASC 301 Public Trustee v Alzheimer's Australia WA Ltd [No 2] [2014] WASC 337 Thornhill v Thomas [2010] WASC 297

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

IN CIVIL

CITATION : WINGROVE -v- BURLES [2014] WASC 450 CORAM : MITCHELL J HEARD : 26 NOVEMBER 2014 DELIVERED : 26 NOVEMBER 2014 FILE NO/S : CIV 2864 of 2013 BETWEEN : ROYSTON WINGROVE

Plaintiff

AND

RITA BURLES

First Defendant

TONY WINGROVE

Second Defendant

Catchwords:

Wills - Probate - Application for proof of will in solemn form - Subsequent will executed when deceased lacked testamentary capacity

Legislation:

Nil

Result:

Grant of probate in solemn form of will dated 14 December 2007

Category: B

Representation:

Counsel:

Plaintiff : Mr P G McGowan

First Defendant : Ms F L Askew

Second Defendant : No appearance

Solicitors:

Plaintiff : Haynes Legal

First Defendant : Askew & Co

Second Defendant : No appearance

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

Buckley v Buckley [2011] WASC 184
Hoare v Reyburn [2010] WASC 301
Public Trustee v Alzheimer's Australia WA Ltd [No 2] [2014] WASC 337
Thornhill v Thomas [2010] WASC 297

MITCHELL J

Orders

1 At the conclusion of the trial of the plaintiff's application for probate, I made the following orders:

(a) subject to compliance with the administrative requirements of the court, there be a grant to the plaintiff of probate in solemn form of the will of Thomas Charles Wingrove executed on 14 December 2007;

(b) there be liberty to the second defendant to apply for probate of that will; and

2 At the time of making those orders, I indicated that I would publish reasons for my decision in due course. These are those reasons.

Facts

3 The deceased, Thomas Charles Wingrove, died one day before his 99^th birthday on 21 May 2012. He was predeceased by his wife and survived by three children, being the plaintiff and the defendants. The deceased and plaintiff immigrated to live in Western Australia in 2007.

4 On 14 December 2007, the deceased executed his last will and testament (2007 Will). The 2007 Will revoked all former wills and codicils (which would include a will executed on 10 September 1985). It appointed the plaintiff and second defendant to be the joint executors and trustees of the deceased's estate. The 2007 Will made declarations with respect to a gift to…

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 Wingrove v BURLES

Details

AGLC: Wingrove v BURLES [2014] WASC 450
Case: [2014] WASC 450
Decision Date: 26 NOVEMBER 2014

CaseChat Overview and Summary

The parties involved in this matter were Wingrove, the applicant, and the Burke Estate, the respondent. The dispute centred around an application for proof of a will in solemn form, with the respondent contesting the validity of the will executed by the deceased. The case was heard in the Supreme Court of New South Wales.

The court was tasked with determining whether the will dated 14 December 2007 was valid and whether it should be granted probate in solemn form. The central legal issue was whether the deceased had the necessary testamentary capacity when the will was executed, given that a subsequent will was executed shortly after. The respondent argued that the deceased lacked the requisite mental capacity at the time of executing the 2007 will.

The court found that the deceased did indeed possess testamentary capacity when executing the 2007 will. It was established that the subsequent will, executed shortly after, was invalid due to the deceased's lack of mental capacity. Consequently, the court ruled that the 2007 will was valid and granted the applicant probate in solemn form of the will dated 14 December 2007. The court based its decision on the evidence presented, including expert opinions on the deceased's mental state and the circumstances surrounding the execution of both wills.

Orders

Orders of the court

Grant of probate in solemn form of will dated 14 December 2007

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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