Succession - wills, probate and administration - application for grant of probate of will - handwritten alterations to photocopy of will -Wills Act1997 (Vic) s 9 - whether alterations expressed testamentary intentions - alterations constituted a note or memorandum of intended instructions and inter vivos gifts - probate granted in respect of unaltered will.
This is an application by the plaintiff as executor of the estate of Lorna Winifred Grover, deceased, for the grant of probate of a will dated 23 April 1992, alternatively, for a grant of probate of that will as varied by a photocopy of the will.
The first defendant, Mrs Levin, was at one point represented by solicitors but appeared before me in person. She is the daughter of the deceased’s first cousin. She is the subject of one of the handwritten amendments on the photocopy will referred to in the application. The second and third defendants are the children of one William Grover, who is named as a beneficiary in the will of 23 April 1992 and whose name is crossed out in the photocopy of the will. Mr Cook of counsel appeared for the second and third defendants.
Mrs Levin seeks to have the photocopy will admitted to probate and she relies on s 9 of the Wills Act 1997 (Vic). The second and third defendants seek to have the will of 23 April 1992 admitted to probate. The executor’s counsel, Mr Waddell, submitted that the requirements of s 9 of the Wills Act 1997 (Vic) were not satisfied in this case, and accordingly also submitted that the will dated 23 April 1992 should be granted probate.
In this application the executor relied upon an affidavit of Peter John Williams sworn 21 May 2003 and an affidavit of David John Williams sworn 29 September 2003. Mr David Williams gave oral evidence correcting a date and some matters were put to him in cross-examination by Mrs Levin. Mrs Levin relied upon an affidavit by her of 28 October 2003 and gave some additional oral evidence. The second and third defendants did not lead any evidence.
The matter was conducted by all parties in a non-adversarial manner. The most Mrs Levin might gain from any version…
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
Equity Trustees v Levin [2004] VSC 203
Case
[2004] VSC 203
Decision Date
CaseChat Overview and Summary
The case of Equity Trustees Ltd v Levin involved an application for the grant of probate of a will, which had been executed in Victoria. The dispute centred on whether handwritten alterations made to a photocopy of the will were sufficient to express the deceased's testamentary intentions in accordance with section 9 of the Wills Act 1997 (Vic). The Victorian Supreme Court was tasked with determining whether these alterations constituted a note or memorandum of intended instructions and inter vivos gifts, which would be necessary for the will to be valid.
The court was required to decide whether the handwritten alterations made to the photocopy of the will constituted a valid expression of testamentary intention, thereby satisfying the requirements of section 9 of the Wills Act 1997 (Vic). The central issue was whether these alterations could be considered a note or memorandum of intended instructions and inter vivos gifts. The court also needed to examine whether the alterations were made with the necessary formality and intent, and whether they could be reconciled with the original typed will.
The court held that the handwritten alterations did not sufficiently express the deceased's testamentary intentions to satisfy section 9 of the Wills Act 1997 (Vic). The court found that the alterations did not constitute a note or memorandum of intended instructions and inter vivos gifts, and therefore did not satisfy the necessary formality and intent required for such alterations to be considered valid. The court granted probate in respect of the unaltered will, as it was the only version that met the legal requirements for testamentary disposition.
The court's final orders granted probate of the unaltered will, dismissing the application for probate of the handwritten altered photocopy. The decision underscores the importance of adherence to the formalities and intent required for testamentary dispositions, and the necessity of clear and unambiguous expression of testamentary intentions in accordance with the relevant legislation.