JUDGE:	Daly AsJ
WHERE HELD:	Melbourne
DATE OF HEARING:	10 October 2017
DATE OF JUDGMENT:	5 June 2019[1]
CASE MAY BE CITED AS:	Chan v Valmorbida: IMO the Will of Adrian Valmorbida, deceased
MEDIUM NEUTRAL CITATION:	[2019] VSC 336

[1]On 16 November 2017 the Court received a request that delivery of these reasons be delayed to enable the parties to engage in discussions with respect to the disputes between them in this and other proceedings in this Court. On 12 March 2019 the Court received notice that the parties sought that judgment be delivered.

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WILLS – Construction – General principles of construction of wills – Admissibility of evidence – Sections 34, 36 of the Wills Act 1997 (Vic) – Evidence which post-dates execution of will admissible – Application of ‘armchair principle’ – Permissible for Court to ‘read in’ words of a will to give effect to testator’s intention.

RECTIFICATION – Application for rectification of a will – General principles – Section 31 of Wills Act 1997 (Vic) – Nature of ‘clerical error’ – Clerical error may be made by the testator in a homemade will.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Ms C Sparke QC with Mr J Barber	Arnold Bloch Liebler
For the Applicant	Mr S Pitt	Lawson Hughes Peter Walsh

TABLE OF CONTENTS

Introduction and Background......................................................................................................... 1

The Application............................................................................................................................. 3
The Evidence, and Objections to Evidence............................................................................... 5
Relevant legal principles - construction.................................................................................. 15
Submissions regarding the construction issue....................................................................... 18
Relevant legal principles - rectification................................................................................... 20
Submissions regarding the rectification issue........................................................................ 22

Conclusion......................................................................................................................................... 23

HER HONOUR:

Introduction and Background

Adrian Valmorbida died on 4 August 2016, after being ill with cancer for some time. He left behind a widow, Kairu[2] and two children, his father (‘Mariano’) and other siblings, and a home-made will (‘Will’).
[2]For ease of reading, I have used the parties’ first names. No disrespect is intended.

Prior to his death, Adrian lived with Kairu and their daughters at Unit 281, 299 Queen Street, Melbourne (‘Republic apartment’),[3] which was and is owned by Mariano, subject to a mortgage held by Bendigo Bank Ltd (‘Bendigo Bank’). Adrian was, with his father, as tenants in common, one of the registered proprietors of a property at 22 Linlithgow Road, Toorak (‘Toorak property’), where Mariano lives. The Toorak property is also encumbered by a mortgage held by Bendigo Bank.[4]
[3]The affidavit evidence suggested that Adrian used the Republic apartment as his office and for entertaining, while he and his family lived in the apartment next door. However, it was confirmed during the course of 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 Chan v Valmorbida

Details

AGLC: Chan v Valmorbida: IMO the Will of Adrian Valmorbida, deceased [2019] VSC 336
Case: [2019] VSC 336
Decision Date: 5 June 2019[1]

CaseChat Overview and Summary

In the case of Chan v Valmorbida, the dispute arose between the plaintiffs, who are the children of the deceased, and the defendant, who is the executor of the deceased's will. The central issue was the interpretation and potential rectification of the deceased's will, which the plaintiffs argued contained clerical errors. The matter was heard in the Supreme Court of Victoria.

The primary legal issues the court had to address were whether the evidence presented post-dated the execution of the will, and if such evidence was admissible under the Wills Act 1997 (Vic). Additionally, the court had to determine whether the will contained clerical errors that warranted rectification, and if the ‘armchair principle’ could be applied to give effect to the testator’s intention. The court also considered the admissibility of extrinsic evidence to interpret the will, specifically under sections 34 and 36 of the Wills Act 1997 (Vic).

The court held that evidence presented after the will was executed could be admissible if it assisted in understanding the testator's intention, applying the ‘armchair principle’. It was determined that the will contained clerical errors, which could have been made by the testator, and thus fell within the scope of section 31 of the Wills Act 1997 (Vic). The court found that it was permissible to ‘read in’ words to the will to reflect the testator’s true intention, provided it did not alter the fundamental nature of the document. The court granted the application for rectification, modifying the will to better reflect the deceased’s intentions.

The court’s final order was to rectify the will by making specific amendments to reflect the testator's true intentions, thus ensuring that the estate was distributed in accordance with the deceased's wishes as discerned from the evidence presented.

Orders