In the Will and Estate of Mary Margaret Rupe

[2010] VSC 142

IN THE SUPREME COURT OF VICTORIA Not Restricted

AT MELBOURNE

PRACTICE COURT

No. 16976 of 2009

In the matter of the Will and Estate of Mary Margaret Rupe:
Application by Charles Arthur Rupe Plaintiff

---

JUDGE:	OSBORN J
WHERE HELD:	Melbourne
DATE OF HEARING:	31 March 2010
DATE OF RULING:	31 March 2010
CASE MAY BE CITED AS:	In the Will and Estate of Mary Margaret Rupe
MEDIUM NEUTRAL CITATION:	[2010] VSC 142

---

ADMINISTRATION AND PROBATE – Applicant seeking letters of administration on intestacy of deceased’s estate - Wills Act 1997 ss 9, 12

---

APPEARANCES:	Counsel	Solicitors
For the Applicant	Ms C. Sparke	Duffy and Simon Lawyers

HIS HONOUR:

1. The plaintiff, Charles Arthur Rupe, is the only son of the deceased, Mary Margaret Rupe.  The deceased died on 4 December 2008 and her son now seeks letters of administration on intestacy of her estate. 

1. He submits that his mother died without a valid will by reason of an informal letter of revocation signed by her with the intention of revoking her last formal will. 

1. The parties who will be affected by the order are the plaintiff's two children who were beneficiaries of the will which the deceased intended to revoke.  Both these parties consent to the orders which are now sought. 

1. The deceased's last will, dated 4 October 2003, left her estate to the plaintiff's two children who were the deceased's only grandchildren.  The will contained a revocation clause revoking earlier wills.  Nearly two years after executing the October 2003 will, the deceased executed a letter dated 16 May 2005 which stated, after enclosing a copy of an earlier will made in 1987:

Please revoke any will made after this date, thanking you. 

1. The letter was signed by the deceased but in the absence of witnesses. 

1. The letter was sent, after a conversation with a solicitor to the effect that the deceased should send in a letter stating her intention to revoke her old wills.  The conversation was the subject of a file note and was followed by a letter of 6 May 2005 by the solicitor to the deceased which stated in part:

We confirm that you will provide us with a copy of your 1987 Will, together with a note signed and dated instructing us to revoke any subsequent Wills made after the 1987 Will.  We will then keep this on file and in our Deeds office for our records. 

1. A will may be revoked in the ways set out in s 12 of the Wills Act 1997.  In particular it may be revoked in consequence of an order of this Court dispensing with the formal requirements for revocation of a will.

1. In the present case I am satisfied that the letter of revocation meets the requirements set out in s 9 of the Wills Act for dispensation in respect of the circumstances of its execution.  First, it constitutes a document written by the deceased.  Secondly, it plainly purports to record the testamentary wishes of the deceased and thirdly, I am satisfied it was intended, without anything more, to operate as a testamentary document revoking the deceased's last made will in accordance with the terms of the letter.   The evidence relating to the context of the letter completes this view.

1. I therefore propose to order, firstly, that the formal requirements for revoking a will are dispensed with in relation to a letter signed by the deceased and dated 16 May 2005 and secondly, that letters of administration on intestacy of the Estate of the above named Mary Margaret Rupe (deceased) be granted to Charles Arthur Rupe of 5 Witton Street, Longwarry, who is a Victorian farmer, the son of the deceased and the person entitled to take on intestacy.  Thirdly, I will direct that this order be signed by the judge pursuant to rule 60.04 of the Rules of the Supreme Court.