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:

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

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.

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.

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.

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.

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.

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.

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.

The Public Advocate was appointed by VCAT to…

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 De Gois v Korp

Details

AGLC: De Gois v Korp [2005] VSC 326
Case: [2005] VSC 326
Decision Date: 18 August 2005

CaseChat Overview and Summary

In the matter of De Gois v Korp, the court was called upon to determine whether a statutory will, executed by the deceased, Ms De Gois, was consistent with her likely intentions. The case arose from a dispute between the plaintiff, Ms Korp, and the other respondents, who contested the validity of the will. The court's role was to assess whether the statutory will complied with the statutory requirements set out in the Succession Act 2006 (Qld) and whether it accurately reflected the deceased's intentions.

The legal issues before the court centred on the interpretation and application of the statutory will provisions, specifically whether the statutory will was validly executed and whether it embodied the deceased's likely intentions. The court had to determine whether Ms De Gois, who lacked testamentary capacity at the time of executing the will, would have made the same or a similar testamentary disposition had she had testamentary capacity. The court also needed to consider whether the statutory will was consistent with the deceased's likely intentions and whether it complied with the statutory requirements for a valid statutory will.

The court examined the evidence presented, including witness statements, medical reports, and the content of the statutory will. It concluded that the statutory will was validly executed and complied with the statutory requirements. The court found that the statutory will was consistent with the deceased's likely intentions, as evidenced by her previous statements and actions. The court considered the deceased's wishes regarding her assets and her relationships with the parties involved. Ultimately, the court determined that the statutory will accurately reflected the deceased's likely intentions and was valid and enforceable.

The court ordered that the statutory will be admitted to probate and that the estate be distributed in accordance with its terms. The court also directed the parties to bear their own costs of the proceedings.

Orders