ORMISTON and CHARLES, JJ.A. and DODDS-STREETON, A.J.A.
WHERE HELD:
MELBOURNE
DATES OF HEARING:
5, 6 and 7 May 2004
DATE OF JUDGMENT:
11 June 2004
MEDIUM NEUTRAL CITATION:
[2004] VSCA 112
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WILLS - Whether trial judge erred in refusing leave under s.26 of the Wills Act 1997 ("the Act") to apply for an order under s. 21 of the Act authorising a statutory will on behalf of a person who had lost testamentary capacity - Testatrix's existing will valid, but intestacy of the residuary estate because principal beneficiary predeceased her, and no gift over - Whether trial judge erroneously decided that the omission of a gift over was deliberate and reflected an intention that the laws of intestacy operate - Whether proposed will accurately reflected testatrix's likely intentions by avoidance of intestacy and selection of residuary beneficiaries indicated by a pattern emerging from testatrix's previous wills - Trial judge correctly refused leave - Accurate reflection of "likely intentions" pursuant to s.26(b) of Act requires substantial degree of precision - Precludes authorisation of proposed will which no more probably reflects testatrix's intentions than a number of other possible dispositions, even if intestacy not intended - English cases distinguished, and cautious approach to their principles required.
COSTS - Whether costs of the unsuccessful application for leave payable from testatrix's estate - Costs not payable where estate not party nor represented - No general entitlement to costs of an unsuccessful application (not made by independent administrator) from estate of incapacitated person on basis that there was 'fair case of dispute' - English decisions distinguished.
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APPEARANCES:
Counsel
Solicitors
For the Appellant
Mr N. Lucarelli, Q.C. Mr R.C. Wells
Stedman Cameron
For the 1st and 5th Respondents
For the 6th to 10th Respondents
Mr R.K. Sanders in person
Ms C.H. Sparke
Woodgate Hughes
T.J. Mulvany & Co.
ORMISTON, J.A.:
In this appeal I have had the opportunity of reading the reasons for judgment of Dodds-Streeton, A.J.A. and, for the reasons she has stated, I consider that this appeal should be dismissed. It is sufficient to add that none of the evidentiary material before the Court is sufficient to establish that the will proposed by the appellant accurately reflects the likely intentions of Ms Sanders. I agree with Dodds-Streeton, A.J.A. that care should be taken in applying decisions under the English legislation over the years permitting the courts to make a will for a person under disability and that, to the extent that any of the decisions of judges of the Trial Division have sought to apply the interpretation given by the English courts, those decisions in this jurisdiction should be treated with caution.
CHARLES, J.A.:
I have read the very comprehensive reasons prepared by Dodds-Streeton, A.J.A. I agree with her Honour that the appeal should be dismissed, and for the reasons given.
DODDS-STREETON, A.J.A.:
Introduction
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.
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AGLC
Boulton v Sanders [2004] VSCA 112
Case
[2004] VSCA 112
Decision Date
CaseChat Overview and Summary
The case of Boulton v Sanders involved an application by the executors of the estate of Mrs. Boulton, who had lost testamentary capacity, seeking leave to apply for a statutory will under section 21 of the Wills Act 1997. The application was based on the argument that Mrs. Boulton's existing will was valid, but the residuary estate was intestate due to the predecease of the principal beneficiary without a gift over. The executors argued that the trial judge erred in refusing to grant leave to apply for a statutory will, which they believed would accurately reflect Mrs. Boulton's likely intentions.
The legal issues in the case centred on whether the trial judge correctly refused to grant leave under section 26 of the Act and whether the omission of a gift over in the testatrix's will was deliberate, reflecting an intention for the laws of intestacy to operate. The court had to determine whether the proposed will accurately reflected Mrs. Boulton's likely intentions by avoiding intestacy and selecting residuary beneficiaries. Additionally, the case examined whether the costs of the unsuccessful application should be payable from the testatrix's estate.
The court found that the trial judge's refusal to grant leave was correct. The court held that the application for a statutory will must reflect the testatrix's likely intentions with a substantial degree of precision. Since the proposed will did not clearly and substantially reflect Mrs. Boulton's intentions more than other possible dispositions, the application was rightly denied. The court also ruled that costs of the unsuccessful application were not payable from the testatrix's estate as the estate was neither a party nor represented in the proceedings. The court distinguished English decisions and emphasised a cautious approach to their principles.