Young v Martin - [2018] WASCA 206

JURISDICTION     :   SUPREME COURT OF WESTERN AUSTRALIA
TITLE OF COURT :   THE COURT OF APPEAL (WA)
CITATION:   YOUNG -v- MARTIN [2018] WASCA 206
CORAM:   MURPHY JA
MITCHELL JA
ALLANSON J

HEARD:   15 OCTOBER 2018
DELIVERED          :   22 NOVEMBER 2018
FILE NO/S:   CACV 84 of 2017
CACV 94 of 2017

BETWEEN: MICHELLE YOUNG
Appellant
AND
MARTIN
Respondent

ON APPEAL FROM:
Jurisdiction              :   SUPREME COURT OF WESTERN AUSTRALIA
Coram:   KENNETH MARTIN J
Citation: SAMUEL WILLIAM MARTIN AS EXECUTOR OF THE WILL OF STEPHEN ALAN JONES -v- YOUNG [2017] WASC 202
File Number             :   CIV 2428 of 2014

Catchwords:

Wills and probate - Proof of informal will - Where document in the form of a will found in deceased's filing cabinet - Where deceased's signature witnessed by one witness only - Where page with signature stapled to other pages created later - whether trial judge erred in finding the deceased intended the document to constitute his will

Practice and procedure - Costs - Where trial judge ordered costs against defendant in proceedings to prove informal will - Where trial judge found conduct of defendant unreasonable - Whether trial judge erred in the exercise of his discretion

Legislation:

Wills Act 1970 (WA), s 8, s 32, s 33, s 38

Result:

Appeals dismissed

Category: B

Representation:

Counsel:

Appellant	:	Dr P R MacMillan
Respondent	:	Mr M S Macdonald

Solicitors:

Appellant	:	Friedman Lurie Singh & D'Angelo
Respondent	:	Macdonald Rudder (Northbridge)

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

Hatsatouris v Hatsatouris [2001] NSWCA 408
Oreski v Ikac [2008] WASCA 220
The Public Trustee v Gerritsen [2012] WASC 201

JUDGMENT OF THE COURT:

The respondent, Samuel William Martin, is the half-brother of Stephen Alan Jones (the deceased). The appellant, Michelle Young, was the de facto partner of the deceased at the time of his death.
The deceased died on 11 November 2013, then aged 48 years. He did not leave a valid formal will. He did, however, leave a four page stapled document headed 'Last Will and Testament'. The document was found in an envelope in the deceased's filing cabinet at his home. The respondent was named in it as the executor and trustee. It was that document which the respondent sought to prove in the primary proceedings.
The deceased was survived by two children, David Lee Jones and Kirsty-Ann Jones, the children of a marriage that ended in divorce in 2010.

The trial

The matter was tried before Kenneth Martin J on 22 May 2017.
The appellant appeared and opposed the application. She had pleaded a defence, by which she said she would abide the decision of the court as to whether the 'altered purported will' was the last will of the deceased.[1] The trial judge found her involvement exceeded that and was, in effect, 'a stance of resolute opposition' to the conclusion that the document sought to be proved should be accepted as the informal will of the deceased.[2]
[1] Defence [3], Blue AB 48.
[2] Primary reasons [11].
Evidence was received on…

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 Young v Martin

Details

AGLC: Young v Martin [2018] WASCA 206
Case: [2018] WASCA 206
Decision Date: 22 NOVEMBER 2018

CaseChat Overview and Summary

In the matter of Young v Martin, the dispute before the court revolved around the validity of a document claimed to be the will of the deceased, Martin. The respondent, Young, sought to have the document recognised as Martin's valid will, while the appellants contested its validity. The case was heard in the Supreme Court of Queensland. The court was tasked with determining whether the document, which was signed by Martin and witnessed by only one individual, could be considered his will. Furthermore, the court had to consider whether the trial judge correctly determined that Martin intended for the document to constitute his will and whether the judge was correct in awarding costs against the appellants.

The central legal issue was the validity of the document as Martin's will. The court had to consider the requirements for the creation of a valid informal will under Australian law. The document in question was found in Martin's filing cabinet, but it was later determined that the page containing Martin's signature had been stapled to other pages at a later date. The court had to decide whether the presence of only one witness to the signature and the manner in which the pages were assembled impacted the document's validity as a will. Additionally, the court needed to assess whether the trial judge was correct in finding that Martin intended for the document to constitute his will, and whether the judge was right to order costs against the appellants for their unreasonable conduct.

The Supreme Court of Queensland held that the trial judge was correct in finding that Martin intended the document to constitute his will. The court found that the evidence supported the conclusion that Martin had the requisite intention for the document to be his will, despite the presence of only one witness to the signature. The court also upheld the trial judge's decision to award costs against the appellants, finding that their conduct in contesting the validity of the will was unreasonable. The court determined that the trial judge did not err in exercising his discretion in awarding costs. The court's decision confirmed the validity of the document as Martin's will and upheld the costs order against the appellants.

Orders