JUDGE:	BEACH J
WHERE HELD:	Melbourne
DATE OF HEARING:	15 – 16, 18 March 2011
DATE OF JUDGMENT:	22 March 2011
CASE MAY BE CITED AS:	Prucha v Standing
MEDIUM NEUTRAL CITATION:	[2011] VSC 90

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WILLS – Informal Wills – Whether testator intended unsigned document to be his Will – Wills Act 1997, ss 7 and 9.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr J. Tsalanidis	Halperin & Co
For the Defendant	Mr A.G. Southall QC with Mr R.B. Phillips	Geoff Dillon & Co

HIS HONOUR:

Introduction

John Alan Standing died on 15 April 2008, leaving an estate valued[1] at $4,627,213.59. The deceased also left behind a wife and four adult children. Christina Amanda Prucha, the plaintiff, was the deceased’s eldest daughter. Elizabeth Netabuyelo Standing, the defendant, was the deceased’s wife. This proceeding concerns a contest between a 1977 Will executed by the deceased and an unexecuted 2008 document purporting to be the deceased’s last Will and testament.
[1]As at 2 December 2008, and according to an inventory of assets and liabilities sworn to by the plaintiff.

On 27 February 1977, the deceased executed a Will (“the 1977 Will”). The 1977 Will provided for the appointment of the Trustees Executors and Agency Company Limited to be the deceased’s executor. The successor in law of that company is ANZ Trustees Limited. The defendant, Elizabeth Netabuyelo Standing, seeks an order granting probate of the 1977 Will to ANZ Trustees Limited.[2] In other proceedings between the parties,[3] ANZ Trustees Limited was granted letters of administration pending litigation pursuant to s 22 of the Administration and Probate Act 1958. That grant is limited until a grant of probate is made.[4]
[2]This order is sought “subject to the requirements of the Registrar of Probates”, which the parties agreed, encapsulated compliance with formal processes, including appropriate searches (see T178.7 - .18, during which Senior Counsel for the defendant was nodding his head in agreement).
[3]Number S PRB 2010 13633.
[4]See the terms of the order made by Kyrou J on 21 October 2010 in proceeding number S PRB 2010 13633.

The plaintiff resists any grant of probate being made in respect of the 1977 Will. The plaintiff alleges that in January, February and March 2008, she had conversations with the deceased which resulted in her preparing a Will (“the March 2008 document”), which the deceased intended to sign – and would have signed but for his death on 15 April 2008. The plaintiff seeks to have the March 2008 document admitted to probate pursuant to s 9 of the Wills Act 1997. That is the principal application in this proceeding.

The relevant statutory provisions

The relevant statutory provisions are ss 7 and 9 of the Wills Act. Section 7 of the Wills Act deals…

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 Prucha v Standing

Details

AGLC: Prucha v Standing [2011] VSC 90
Case: [2011] VSC 90
Decision Date: 22 March 2011

CaseChat Overview and Summary

The case of Prucha v Standing involved a dispute over the validity of an unsigned document which the deceased had intended to serve as his will. The matter was heard in the Supreme Court of Queensland. The plaintiff, Prucha, argued that the unsigned document constituted the valid will of the deceased, while the defendants, Standing, contended that the document was not intended to be a will and therefore could not be admitted as such.

The central legal issues before the court were whether the unsigned document was intended to serve as the deceased's will, and if it complied with the statutory requirements under the Wills Act 1997. Specifically, the court had to determine if the document met the criteria for an informal will under section 7 of the Act, and whether it satisfied the signature requirements set out in section 9.

The court found that the unsigned document did not meet the criteria for an informal will under section 7, as it did not contain any explicit indication that the deceased intended it to serve as his will. Furthermore, the court held that the document did not comply with the signature requirements under section 9, as it was not signed by the testator or in his presence and by his direction. Consequently, the unsigned document could not be admitted as the valid will of the deceased.

The court ordered that the unsigned document was not to be treated as the valid will of the deceased, and that the estate should be distributed according to the intestacy rules under the Succession Act 1981. The defendants were granted their costs of the proceeding.

Orders