Harrison v Van Ristell

[2004] VSC 163

IN THE SUPREME COURT OF VICTORIA Not Restricted

AT MELBOURNE

COMMERCIAL & EQUITY DIVISION

No.  Prob. 30 of  2003

IN THE MATTER of the Will of Maxine Joyce MILLETT, deceased.

KENNETH ROBIN HARRISON	Plaintiff
v
DEBORAH MARION VAN RISTELL	Defendant

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JUDGE:	HARPER J
WHERE HELD:	MELBOURNE
DATE OF HEARING:	11 MAY 2004
DATE OF JUDGMENT:	11 MAY 2004
CASE MAY BE CITED AS:	HARRISON v VAN RISTELL
MEDIUM NEUTRAL CITATION:	[2004] VSC 163

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ADMINISTRATION AND PROBATE – Application for probate of Will – Paper Will duly executed - Discovery of subsequent informal Will on computer floppy disk – Referral from the Registrar of Probates – Application for probate of informal Will withdrawn – Formal Will admitted to probate.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr S McNab	Robert Clements
For the Defendant	Ms Van Ristell In person

HIS HONOUR:  

1. This is an application to have admitted to probate, as the last Will and testament of Maxine Joyce Millett, a document dated 18 November 1996.  That document appears to have been executed by the deceased in conformity with the provisions of the Wills Act.  Not only does it appear to have been duly executed but there is on the court file, evidence in the form of two affidavits of due execution, attesting to the due execution of that document.  The application to admit the document to probate has not been opposed; the only question initially before the court was whether a parallel application to admit an informal document to probate should be pursued.

1. That application concerned a document said to be a computer printout, taken from a floppy disc which appears to have been the repository of the words now reproduced in the document in early 2001.  The application was properly explained to me by Mr McNab, counsel for Mr Harrison, the executor, named in the 1996 document but after discussion, the application to admit the informal document to probate was withdrawn.

1. I had previously been informed by one of the daughters of the deceased, who, were the informal document to be admitted to probate would have been a beneficiary under that disposition, that she did not press an application made earlier by her for the informal document to be admitted to probate annexed to letters of administration.

1. In the circumstances, I think it was proper for Mr Harrison, through his counsel, to withdraw the application made by him to have the informal document admitted to probate but to press the application for the 1996 document to be so admitted.  I have already adverted to the evidence in support of that application. That evidence seems to be sufficient to warrant the application being granted.

1. Accordingly, I will order that the document being the last Will and testament of Maxine Joyce Millett dated 18 November 1996, be admitted to probate.

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