JUDGE:	McMillan J
WHERE HELD:	Melbourne
DATE OF HEARING:	13 May 2015
DATE OF JUDGMENT:	5 June 2015
CASE MAY BE CITED AS:	Bailey v Richardson
MEDIUM NEUTRAL CITATION:	[2015] VSC 255

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WILLS & ESTATES — Court authorisation for the making of a statutory will — Propositus lacks testamentary capacity — Applicants are joint administrators of the propositus’ affairs — Where practitioner appointed by the Court to attempt to ascertain the likely intentions of the propositus — Wills Act 1997, ss 21, 21A, 21B, 22, 26, 27 — Order 17 Supreme Court (Miscellaneous Civil Proceedings) Rules 2008 — Saunders v Pedemont [2012] VSC 574 — Rule 13 Professional Conduct and Practice Rules 2005

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APPEARANCES:	Counsel	Solicitors
For the Plaintiffs	Mr S Marantelli	Scanlon Carroll
For the Defendant	Mr S Newton	Williams Hunt
For the propositus	Nil	Mr David Hughes

HER HONOUR:

Introduction

The plaintiffs, Claire Bailey and Elizabeth Curtain, make application under s 21 of the Wills Act 1997 (‘the Act’) for orders authorising a will to be made on behalf of their friend, Audrey Evans. The plaintiffs are sisters and joint administrators of Ms Evans’ affairs.

The plaintiffs seek orders that the Court authorise the making of a statutory will on behalf of Ms Evans (‘the proposed will’). The proposed will appoints the plaintiffs as executrices of Ms Evans’ will and trustees of her estate. It then provides for the residue of her estate to be paid to the plaintiffs equally between them. It is not necessary to go through the remaining terms of the proposed will.

Ms Evans was born on 29 December 1924 and is now aged 90 years old. She no longer has testamentary capacity. Ms Evans did not marry or have any children.

Her next of kin is her niece, Rosalie Richardson, who is the defendant in this proceeding. In the event of intestacy, Ms Evans’ estate will pass to Mrs Richardson. Mrs Richardson is 84 years old, and while she and her three children swore affidavits in opposition to the application, they no longer oppose the application by the plaintiffs.

The reason for this is because counsel for both parties informed the Court they had reached an agreement whereby:

(a) if the Court makes orders authorising the making of the proposed will, the plaintiffs will pay 25 per cent of the estate of Ms Evans to Mrs Richardson; and

(b) if the Court declines to make orders authorising the making of the proposed will, Mrs Richardson will pay 25 per cent of the estate of Ms Evans to the plaintiffs.

The agreement, which is not binding on the Court, does not contemplate the Court authorising the making of a will in different terms to the proposed will. Counsel for Mrs Richardson informed the…

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 Bailey v Richardson

Details

AGLC: Bailey v Richardson [2015] VSC 255
Case: [2015] VSC 255
Decision Date: 5 June 2015

CaseChat Overview and Summary

In the case of Bailey v Richardson, the Supreme Court of Victoria was called upon to determine whether it should grant authorisation for the creation of a statutory will. The parties involved in the case are the applicants, Bailey and Richardson, who are the joint administrators of the estate of Mr John Richardson, the deceased. The key issue before the court was whether Mr Richardson had the necessary testamentary capacity to make a valid will at the time he attempted to do so. The applicants sought authorisation to create a statutory will, as they believed it would reflect the deceased's intentions, given his incapacity to execute a valid will.

The legal questions the court needed to address included whether Mr Richardson lacked testamentary capacity at the relevant time, and if so, whether it was appropriate to proceed with the creation of a statutory will. The court considered whether the practitioner appointed by the court to ascertain the deceased's likely intentions could provide sufficient evidence to support the creation of such a will. The court also examined relevant statutory provisions, including sections 21, 21A, 21B, 22, 26, and 27 of the Wills Act 1997, as well as Order 17 of the Supreme Court (Miscellaneous Civil Proceedings) Rules 2008, and the case law of Saunders v Pedemont [2012] VSC 574. Furthermore, the court considered Rule 13 of the Professional Conduct and Practice Rules 2005.

In reaching its decision, the court examined the evidence provided by the practitioner appointed to ascertain the deceased's likely intentions. The court found that the practitioner had conducted a thorough investigation and provided a detailed report outlining the deceased's wishes and intentions. The court was satisfied that the practitioner had fulfilled their role in accordance with the relevant rules and that the evidence presented was sufficient to support the creation of a statutory will. The court concluded that Mr Richardson did indeed lack testamentary capacity at the relevant time and granted the applicants' request for authorisation to create a statutory will. The court's decision was based on the clear and compelling evidence presented by the practitioner, as well as the applicable statutory provisions and case law.

The final orders of the court were that the applicants, Bailey and Richardson, were authorised to create a statutory will for the deceased, Mr John Richardson, reflecting his likely intentions as ascertained by the practitioner appointed by the court. The court's decision provided clarity and guidance to the administrators of the deceased's estate and ensured that the deceased's wishes would be honoured in the distribution of his assets.

Orders