| 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…
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- AGLC
- Jageurs v Downing [2015] VSC 432
- Case
- [2015] VSC 432
- Decision Date
CaseChat Overview and Summary
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
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Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
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Ratio Decidendi
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