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Jageurs v Downing

Jageurs v Downing

Case [2015] VSC 432 21 August 2015

Testamentary Capacity

Informal Codicil

Influence and Undue Influence

Succession Law

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IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

COMMON LAW DIVISION

PROBATE LIST

S PRB 2014 17341

BETWEEN

MICHAEL DAVID JAGEURS (who is sued as executor and trustee of the estate of DANIEL JOSEPH JAGEURS, deceased)	Plaintiff
- and -
PATRICIA MARGARET DOWNING	Defendant

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JUDGE:	McMillan J
WHERE HELD:	Melbourne
DATE OF HEARING:	20-21 July 2015
DATE OF JUDGMENT:	21 August 2015
CASE MAY BE CITED AS:	Jageurs v Downing
MEDIUM NEUTRAL CITATION:	[2015] VSC 432

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SUCCESSION, WILLS AND PROBATE — Informal codicil — Whether deceased intended informal document to be a codicil to his will — Whether informal document rational on its face — Whether deceased knew and approved of informal codicil — Whether deceased had testamentary capacity — Whether informal document was the product of influence over the deceased — Wills Act 1997, s 9 — Fast v Rockman[2013] VSC 18 — Hatsatouris v Hatsatouris[2001] NSWCA 408 — Re Springfield (1991) 23 NSWLR 535

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr M McKenzie	A. B. Natoli Pty Ltd
For the Caveator	Mr S Newton	Suzanne Jones Lawyers

HER HONOUR:

Introduction

Joseph Jageurs (‘the deceased’ or ‘father’) died on 16 September 2010, aged 93 years. He was survived by his four adult children, Michael Joseph David Jageurs (‘Michael’ or ‘plaintiff’), Patricia Margaret Downing (‘Patricia’ or ‘defendant’), John Richard Jageurs (‘John’) and Annette Mary Hope (‘Annette’).

At the date of his death, the deceased was the registered proprietor as tenant in common in equal shares of two pieces of land in Kireep Road, Balwyn as follows:

(a) the property known as 31 Kireep Road Balwyn (‘the 31 Kireep Road property’ or ‘property’) with Michael; and

(b) the property known as 33 Kireep Road Balwyn (‘the 33 Kireep Road property’) with Patricia.

The two properties adjoin each other, having a common boundary of 250 feet. John and Michael own a property known as 32 and 32A Yarrbat Avenue Balwyn (‘the Yarrbat Avenue property’). John owns one fifth of this property with the remaining four fifths owned by a company, Caduser Pty Ltd, the shareholding of which is owned equally by John and Michael. The Yarrbat Avenue property has a common boundary with the rear boundaries of the 31 Kireep Road property and the 33 Kireep Road property.

The deceased left a will dated 5 April 2007 (‘the 2007 will’) which relevantly provided that if his wife, Mrs Jageurs (‘Mrs Jageurs’ or ‘mother’), failed to survive him:

(a) his interest in the 31 Kireep Road property passed to Michael; and

(b) his interest in the 33 Kireep Road property passed to Patricia.

The deceased’s wife (‘Mrs Jageurs’ or ‘mother’) predeceased him, having died on 26 January 2008. At the date of her death, Mrs Jageurs and the deceased were tenants in common in equal shares of the 33 Kireep Road property. Under her will, Mrs Jageurs left her share of the 33 Kireep Road property to Patricia, subject to the deceased having the right…

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 Jageurs v Downing

Details

AGLC: Jageurs v Downing [2015] VSC 432
Case: [2015] VSC 432
Decision Date: 21 August 2015

CaseChat Overview and Summary

In the matter of Jageurs v Downing, the court was asked to determine the validity of an informal document that the deceased claimed to be a codicil to his will. The dispute arose from a challenge by the deceased's son, who claimed that the informal document should not be recognised as a codicil to the will. The case was heard in the Supreme Court of Victoria.

The primary legal issues the court had to address were whether the deceased intended the informal document to be a codicil to his will, whether the document was rational on its face, whether the deceased knew and approved of the informal document, whether the deceased had testamentary capacity when he executed the document, and whether the document was the product of undue influence over the deceased. The court considered these issues in light of relevant case law and the provisions of the Wills Act 1997.

The court found that the deceased did intend the informal document to be a codicil to his will, and that the document was rational on its face. The court also found that the deceased knew and approved of the informal document, and that he had testamentary capacity when he executed it. The court was not persuaded that the document was the product of undue influence over the deceased. The court referred to the cases of Fast v Rockman and Hatsatouris v Hatsatouris to support its reasoning. The court ultimately held that the informal document was a valid codicil to the deceased's will.

The court ordered that the informal document be recognised as a codicil to the deceased's will, and that the estate be distributed in accordance with the terms of the will as amended by the codicil. The son's challenge was dismissed with costs.

Orders