Fast v Rockman - [2015] VSC 337

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

IN ITS PROBATE JURISDICTION

S PRB 2012 7166

JOHN CLAUDE FAST AND ORS	Plaintiffs
v
MATHEW MYER ROCKMAN AND ORS	Defendants

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JUDGE:	McDONALD J
WHERE HELD:	Melbourne
DATE OF HEARING:	29 and 30 April 2015
DATE OF JUDGMENT:	22 July 2015
CASE MAY BE CITED AS:	Fast and Ors v Rockman and Ors
MEDIUM NEUTRAL CITATION:	[2015] VSC 337

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Wills and estates —Informal will admitted to probate did not annex schedule of testator’s trusts referred to in Will — Bequests to testator’s children subject to abatement if schedule incorporated into Will — Application for rectification of Will to annex schedule — Application for declaration that schedule be incorporated by reference — Pre-conditions for incorporation by reference of schedule satisfied—Wills Act 1997 (Vic) s 31

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APPEARANCES:	Counsel	Solicitors
For the Plaintiffs	Mr N O’Bryan SC	Kenna Teasdale Lawyers
For the First to Third Defendants	No appearance
For the Fourth Defendant	Mr SF McNab	Park Lawyers
For the Fifth and Sixth Defendants For the Seventh Defendant	Dr K Hanscombe QC and Mr AP Dickenson No appearance	Taussig Cherrie & Fildes Lawyers

HIS HONOUR:

Irvin Rockman (“Rockman”) died on 30 August 2010. The present proceedings relate to a dispute concerning the construction of his Will, which was admitted to probate on 6 March 2013 (“the final Will”)[1]. Rockman’s final Will was neither seen nor executed by him prior to his death. It was admitted to probate pursuant to s 9 of the Wills Act 1997 (“the Act”) as an informal will.[2]
[1]Exhibit P7: Affidavit of Phillip Carey Brown sworn 20 October 2011, Exhibit PB 14.
[2]Fast v Rockman [2013] VSC 18.

The plaintiffs are the executors of Rockman’s estate. The first to sixth defendants are Rockman’s children. The seventh defendant is Rockman’s former wife. Only the plaintiffs and the fourth to sixth defendants actively participated in the proceedings.[3]
[3]The first and second defendants informed the court that they would abide by the outcome of the proceedings, subject to reserving their right to make submissions on costs.

In clause 16 of his final Will, Rockman made specific bequests totalling $3.710 million to a number of individuals and organisations. In clauses 6 to 10 he also bequeathed $500,000 to five of the six defendants. However, unlike the clause 16 bequests, the bequests to his children were not free from the risk of abatement. Whether there are sufficient funds in the estate to avoid abatement of these bequests depends upon the construction of clause 15 of the final Will, which is in the following terms:

Subject to my Trustees first satisfying bequests provided in Clause 16 of this Will I Give and Bequeath the amount of any and all moneys owing to me or standing to my credit as at the date of my death by each of the entities named in the Schedule, as well as by any other companies, trusts or entities that may be formed or come…

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 Fast v Rockman

Details

AGLC: Fast v Rockman [2015] VSC 337
Case: [2015] VSC 337
Decision Date: 22 July 2015

CaseChat Overview and Summary

The case of Fast v Rockman involved a dispute over the interpretation and rectification of a will. The parties involved were the executors of the estate of the deceased, referred to as Rockman, and his children. The central issue was whether a schedule of trusts, which was not physically attached to the will, should be considered part of the will. The case was heard in the Supreme Court of Victoria.

The primary legal issue before the court was whether the schedule of trusts could be incorporated into the will by reference, thereby affecting the distribution of the estate. The court was required to determine if the pre-conditions for incorporation by reference, as outlined in the Wills Act 1997 (Vic) section 31, were satisfied. Specifically, the court needed to assess whether the will referred to the schedule, and if there was clear evidence that the testator intended for the schedule to form part of the will.

The court found that the pre-conditions for incorporation by reference were indeed satisfied. The will explicitly referred to the schedule, and there was ample evidence to suggest that the testator intended the schedule to be incorporated into the will. Consequently, the court granted the application for rectification of the will to annex the schedule. Additionally, the court declared that the schedule should be incorporated by reference into the will, thereby affecting the distribution of the estate as intended by the testator. The children of the deceased, who were the beneficiaries of the trusts, would now receive their bequests subject to the terms of the schedule.

The final orders of the court included the rectification of the will to annex the schedule and a declaration that the schedule be incorporated by reference into the will. This decision ensured that the distribution of the estate would follow the true intentions of the testator as outlined in the schedule.

Orders