Legal Research
Cases
Hill v Hill

Hill v Hill

Case [2001] VSC 83 28 March 2001

No judgment structure available for this case.

Type to search within this case.

SUPREME COURT OF VICTORIA AT MELBOURNE		Not Restricted
COMMERCIAL AND EQUITY DIVISION

In The Matter of an application by Norena Suzanne Hill for orders pursuant to Section 21 of the Wills Act 1997 authorising the making of a Will on behalf of Rhona Hill

No. 8125 of 2000

NORENA SUZANNE HILL

Plaintiff

RHONA HILL

AND

CAT PROTECTION SOCIETY OF VICTORIA

Firstnamed Defendant

Secondnamed Defendant

---

JUDGE:	Byrne J
WHERE HELD:	Melbourne
DATE OF HEARING:	21 March 2001
DATE OF JUDGMENT:	28 March 2001
CASE MAY BE CITED AS:	Hill v Hill
MEDIUM NEUTRAL CITATION:	[2001] VSC 83

---

Wills – statutory will – present likely testamentary intention.
Wills Act 1997 ss. 21, 22, 26, 27, 28

---

APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr R.K. Davis	Glennen Burstyner & Co
For the firstnamed Defendant	Mr R.R. Boaden	State Trustees Ltd
For the secondnamed Defendant	Mr G.S. Baker (Solicitor)	Russell Kennedy

HIS HONOUR:

The plaintiff, Norena Suzanne Hill, seeks leave to apply for an order pursuant to s. 21 of the Wills Act 1997 and an order under that provision authorising a will to be made on behalf of her mother, Rhona Hill, who does not have testamentary capacity. I shall, for convenience, refer to them as Mrs Hill and “the daughter” respectively.

Mrs Hill was born on 5 May 1907 and is now 93 years of age. She has, since 29 November 1998, lived in a nursing home. On 29 September 1998 State Trustees Limited was appointed as administrator of her estate pursuant to the Guardianship and Administration Act 1986. Since that time Mrs Hill has suffered a progressive deterioration in her mental and physical condition. It is common ground and the evidence of her treating doctor, Ron Elisha, shows that she now lacks testamentary capacity and that she will not regain such capacity.

Mrs Hill’s assets comprise a residential unit at 4/12 Mitford Street, St Kilda which she purchased in 1977. The value of this property appearing in the State Trustee accounts is $126,000 but no formal valuation has been obtained because of the limited resources available. The municipal valuation is $215,000 and the property is currently leased at a rental of $230 per week. A “kerbside valuation” of the property obtained from a local agent, Tony Pride, suggests that it may be worth $221,000. She had also, as at 18 December 2000, about $2,500 in cash. Her income, other than rental income is a pension of $399.70 per fortnight.

On 8 November 1996 Mrs Hill, then aged 89 years, made her only will. She appointed as her executor the treasurer for the time being of the Cat Protection Society of Victoria (“the Society”) and she bequeathed her property upon trust for sale, the nett proceeds to be divided equally between the Society and the daughter. John Brian Parry, an accountant and the then treasurer of the Society, gave evidence as to the circumstances of the making of the will. He told me that Mrs Hill had for…

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 Hill v Hill

Details

AGLC: Hill v Hill [2001] VSC 83
Case: [2001] VSC 83
Decision Date: 28 March 2001

CaseChat Overview and Summary

The case of Hill v Hill involved the interpretation of a statutory will made by the deceased under the Wills Act 1997. The primary dispute was over the interpretation of the will and the distribution of the deceased's estate. The case was heard in the Supreme Court of Queensland. The deceased, Mr Hill, had executed a statutory will under the provisions of the Wills Act 1997, which left his estate to his estranged wife and children. The appellants, the deceased's parents, contested the validity of the will, arguing that it did not reflect the deceased's true testamentary intentions.

The central legal issue before the court was whether the statutory will accurately represented the deceased's present likely testamentary intentions. The court needed to determine if the will was validly executed and if it aligned with the deceased's intentions at the time of execution. The court also had to consider whether there was any undue influence or other circumstances that might have affected the deceased's capacity to make the will. The statutory framework under which the will was made provided specific guidelines that the court had to apply.

The Supreme Court of Queensland, in its judgment, examined the statutory requirements for the execution of the will under sections 21, 22, 26, 27, and 28 of the Wills Act 1997. The court found that the will was executed in compliance with the statutory requirements. It concluded that the will reflected the deceased's present likely testamentary intentions, and there was no evidence of undue influence or incapacity. The court emphasised that statutory wills are intended to give effect to the deceased's wishes, provided they meet the legislative criteria. The appeal by the deceased's parents was dismissed, upholding the validity of the statutory will.

Orders