De Gois v Korp

[2005] VSC 326

IN THE SUPREME COURT OF VICTORIA Not Restricted

AT MELBOURNE

COMMERCIAL AND EQUITY DIVISION
PRACTICE COURT

No. 7333 of 2005

IN THE MATTER OF Part 3, Division 2 Wills Act 1997

-and-

IN THE WILL OF MARIA MATILDE KORP

LAURA MARTINS DE GOIS	Plaintiff
V
JOSEPH WILLIAM KORP	Defendant

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JUDGE:	Mandie J
WHERE HELD:	Melbourne
DATE OF HEARING:	1 August 2005
DATE OF PUBLICATION OF REASONS:	18 August 2005
CASE MAY BE CITED AS:	De Gois v Korp
MEDIUM NEUTRAL CITATION:	[2005] VSC 326

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WILLS – statutory will – application for authorising order – likely intentions of person lacking testamentary capacity.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr W.J. Martin Q.C. Mr R.B. Phillips	Best Hooper
For the Defendant	No Appearance

HIS HONOUR:

1. These are the reasons for the orders made by the Court in this proceeding on 1 August 2005. 

1. On that date the Court, pursuant to s.21 of the Wills Act 1997 (Vic) (“the Wills Act”), authorised a will to be made on behalf of Maria Matilde Korp (“Mrs Korp”) in terms approved by the Court.

1. The order was sought by the plaintiff, a daughter of Mrs Korp, who applied by originating motion filed on 25 July 2005. Leave was granted to the plaintiff to make that application pursuant to s.21(2) of the Wills Act.

1. The will sought to be made and approved was a will that revoked all prior wills, that appointed the plaintiff and the plaintiff’s solicitor as executors and which left Mrs Korp’s estate on trust for such of her children as attained the age of 21 years as tenants in common in equal shares.

1. The facts as at 1 August 2005 and as disclosed by the material filed and produced in support of the application are summarised in what follows (although the whole of that material has been taken into account).[1]

   [1]See s.22 of the Wills Act.

1. Mrs Korp was born on 14 January 1955.  On 4 November 1974 she married Manuel De Gois.  The plaintiff is a child of that marriage born on 2 October 1978.  Mr De Gois died of natural causes in 1987.  Mrs Korp married Joseph William Korp (“Mr Korp”) on 26 October 1991.  There is a living son who was born of that marriage on 6 December 1993.

1. On 9 February 2005 Mrs Korp was reported as missing and on 13 February 2005 she was found unconscious in the boot of her motor vehicle.  She then was and since remained in a persistent vegetative state as a result of severe brain injury. 

1. On 29 March 2005 the plaintiff was appointed by the Victorian Civil and Administrative Tribunal (“VCAT”) as the administrator of Mrs Korp’s estate and, as such administrator, she later severed the joint tenancy of the residential property of Mr and Mrs Korp.  As at 22 April 2005 Mrs Korp’s prognosis was extremely grave and the chance of a meaningful recovery was extremely low.

1. The Public Advocate was appointed by VCAT to be Mrs Korp’s guardian on 28 April 2005.  In late July 2005, on medical advice, the guardian had made certain decisions concerning the cessation of Mrs Korp’s medical treatment with the result, according to the evidence, that she would die within two to three weeks.

1. As at 1 August 2005 Mrs Korp lacked testamentary capacity[2] and was unlikely ever to regain testamentary capacity prior to her imminent death.

   [2]See s.26(a) of the Wills Act.

1. The estimated net value of Mrs Korp’s estate (excluding certain potential claims and contingent assets) was $475,220.  The principal assets were the net value of her said half interest as tenant in common of the residential property and certain superannuation and life insurance entitlements upon death.

1. Mrs Korp’s most recent will was made in 1996.  By that will she appointed her husband Mr Korp as executor and gave her whole estate to him, but if he predeceased her, she gave the whole of her estate to such of the plaintiff and the son of her marriage to Mr Korp as survived her and attained the age of 21 years, equally as tenants in common. 

1. The essence of the new will proposed by the plaintiff was that Mr Korp was removed as executor and beneficiary.  It was submitted on behalf of the plaintiff that the proposed will accurately reflected the likely intentions of Mrs Korp to exclude her husband from the will, if she had testamentary capacity.[3]

   [3]See s.26(b) of the Wills Act.

1. Based upon the police summary of evidence, the relevant circumstances giving support to that submission were numerous but include the following facts as alleged by the police:

·On 16 February 2005, Mr Korp and his mistress, Tania Lee-Ann Herman (“Mrs Herman”) were “arrested in relation to the attempted murder” of Mrs Korp;

·Mr Korp and Mrs Herman had been involved in a continuing sexual relationship from February 2004 to January 2005 and later in that period had lived together for a time;

·Mrs Korp discovered the affair and in December 2004 locked Mr Korp out of their home;

·On 20 December 2004 Mrs Korp obtained an intervention order against Mr Korp precluding him inter alia from being within 200 metres of their home, although he later resumed residing there;

·In December 2004 and in January 2005 Mr Korp and Mrs Herman spoke in the presence of others of murdering Mrs Korp;

·On 7 or 8 February 2005 Mrs Herman told her brother of a specific plan to murder Mrs Korp, upon which she said that she and Mr Korp had decided;

·On 8 February 2005 Mr Korp and Mrs Herman finalised their murder plan and put their “equipment” together;

·On 9 February 2005 Mr Korp drove Mrs Herman in his car into the garage of the Korp home and left her to lie in wait for Mrs Korp – he next had breakfast, spoke to his wife in the kitchen, and then drove from the garage, after speaking to Mrs Herman who was still waiting there.  Allegedly he said to Mrs Herman: “Don’t let the bitch come out of here alive”;

·A little later Mrs Korp came into the garage to get into her car and was attacked from behind by Mrs Herman who, in short, strangled Mrs Korp with a black strap and placed her apparently lifeless body in Mrs Korp’s car boot.  Mrs Herman drove the car out of the garage and away to the place where it was later found;

·On the same day Mrs Herman disclosed her conduct to her brother and later met with Mr Korp and gave him the keys to Mrs Korp’s car.  Mr Korp instructed her to burn various items (including the black strap) connected with her attack on Mrs Korp, which she later did;

·That evening Mr Korp reported Mrs Korp as missing.  During the evening he noticed blood on the cement floor of the garage.  He attempted to clean the floor with bleach and later took the bleach and some other items to Mrs Herman for her to dispose of them;

·After Mrs Korp’s body was found, Mr Korp publicly maintained his innocence both before and after his arrest.  After her arrest Mrs Herman confessed and implicated Mr Korp;

·Mr Korp had stated publicly that the affair had ended well before Mrs Korp’s disappearance but there were daily telephone communications[4] between Mr Korp and Mrs Herman prior to their arrest which were monitored and during one of which Mr Korp told Mrs Herman to be strong and to remain patient.

[4]There were 71 calls recorded between 10 February and 16 February 2005.

1. On 16 February 2005 Mr Korp and Mrs Herman were arrested and later charged with the attempted murder of Mrs Korp.  Mrs Herman subsequently pleaded guilty and was sentenced on 1 July 2005 to 12 years imprisonment.  On 1 August 2005, Mr Korp was on bail and a committal hearing was to take place that day.[5]

   [5]Since the hearing on 1 August 2005 when the Court’s orders were made, I have noted three further matters from media reports: (1) on 4 August 2005 Mr Korp was committed to stand trial for the attempted murder of Mr Korp; (2) on 5 August 2005 Mrs Korp died; (3) on 12 August 2005 Mr Korp died.  These events cannot, of course, have any bearing upon the reasons for the orders made on 1 August 2005.

1. Mr Korp was defendant to the originating motion but there was no appearance by him or on his behalf.  Substituted service was effected on Mr Korp pursuant to an order of Hargrave J made on 28 July 2005, by way of service of the documents on 29 July 2005 upon the solicitors acting for him in the criminal proceedings. 

1. I was satisfied, pursuant to s.26 of the Wills Act, that:

(a)       Mrs Korp did not have testamentary capacity;

(b)The proposed will accurately reflected the likely intentions of Mrs Korp, if she did have testamentary capacity; and

(c)It was reasonable in all the circumstances for the Court, by order, to authorise the making of the proposed will for Mrs Korp.

1. Accordingly, leave was granted to the plaintiff to make application for such order and the order was made.[6]

   [6]See s.27(2) of the Wills Act.

1. In reaching the above conclusions, I had regard to what was said by the Court of Appeal in Boulton v Sanders[7] and to the principles stated in Monger v Taylor[8] and State Trustees Ltd v Hayden[9].

   [7](2004) 9 VR 495, especially at [12]-[26], [40]-[54], and [109]-[112] per Dodds-Streeton AJA.

   [8][2000] VSC 304.

   [9](2002) 4 VR 229, 239.

1. The central question, it seemed to me, in the present application was whether the proposed will accurately reflected the likely intentions of Mrs Korp if she had testamentary capacity.

1. For the purpose of determining this hypothetical question, Mrs Korp should be taken to have testamentary capacity and knowledge of all of the circumstances to which I have referred including the following matters:

·     the assets in her estate including the half-share as tenant in common of the residential property;

·     Mr Korp’s affair with Mrs Herman;

·     the serious allegations made against Mr Korp by the police;

·     the attack upon her by Mrs Herman and Mrs Herman’s allegations of Mr Korp’s complicity in the attack;

·     that it was unlikely that Mrs Herman had gained access to the garage unaided;

·     the charge of attempted murder against Mr Korp and his denial of the charge;

·     that her death was imminent and would occur prior to any determination of the guilt or innocence of Mr Korp;

·     that even if acquitted, or otherwise not committed for trial or tried for any reason, it appeared that Mr Korp bore, at the very least, considerable moral responsibility for what had happened to her;

·     the distress of her children and their position generally.

1. Having regard to the foregoing and such little as appears of her actual attitudes and character, it was in my view inconceivable that Mrs Korp, properly advised, would not have excluded Mr Korp from her will.  At any rate I was satisfied that the proposed will accurately reflected her likely intentions and that it was reasonable in all the circumstances to authorise the making of such will.

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