Re Becroft - [2009] VSC 481

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

PRACTICE COURT

No. S PRB 2009 14196

IN THE MATTER of the Will and Estate of ALAN FRANK BECROFT, deceased

Application by:

TREVOR BECROFT, DARREN BECROFT and LURENA BECROFT Plaintiffs

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JUDGE:	HARPER J
WHERE HELD:	MELBOURNE
DATE OF HEARING:	15 OCTOBER 2009
DATE OF JUDGMENT:	15 OCTOBER 2009
CASE MAY BE CITED AS:	APPLICATION BY BECROFT
MEDIUM NEUTRAL CITATION:	[2009] VSC 481

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WILLS – Application for grant of probate of will and handwritten codicil – Whether handwritten document should be admitted to probate as a codicil or as a subsequent will – Document not executed in compliance with requirements of the Wills Act - Use of extrinsic evidence to ascertain testator’s intention - Document testamentary in character –Wills Act1997, ss.7 and 9.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiffs	Dr K. P. Hanscombe SC with Mr T. Cordiner	Patrick J. Cannon, Coburn & Associates Pty

HIS HONOUR:

This is an application brought by originating motion for probate of a will dated 20 November 2001, together with, as a codicil to that will, a handwritten document dated 3 February 2009. The deceased is Alan Frank Becroft. The proceeding is brought by his three children, each of whom is named in the 2001 will as an executor.

It is the handwritten document which has thrown doubt upon what would otherwise be a straightforward application for probate of the 2001 will. The latter has been executed in accordance with the law relating to wills, and is clearly testamentary in character. There is no suggestion of testamentary incapacity or other vitiating factor.

The handwritten document, however, is of necessity one the status and effect of which requires consideration before that status and that effect can be determined. Its execution is described in an affidavit sworn by Trevor Frank Becroft on 22 September 2009. The other two executors have also sworn affidavits of the same date. In these they confirm the truth of the matters to which their brother deposes. This is not altogether satisfactory since, if his affidavit is true, they have no independent means of knowledge of some of the events he describes. I am, however, prepared to proceed on the basis that they can and do confirm those details about which they have direct knowledge, and that they believe the balance of their brother's affidavit to be true.

In paragraph 8 of Trevor Becroft's affidavit of 22 September this year, he says as follows:

On the 3rd day of February 2009, my father, myself and Darren, [I interpolate to say that is a reference to his brother, Darren Becroft] were working in the family business at 112 Maddox Road, Newport in the said State [I interpolate to say, Victoria]. My father called me into the tea room where he had set out a handwritten document. He requested that I read it and sign it. I recognised his signature immediately above the space provided for mine. I read…

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 Re Becroft

Details

AGLC: Re Becroft [2009] VSC 481
Case: [2009] VSC 481
Decision Date: 15 OCTOBER 2009

CaseChat Overview and Summary

Re Becroft is a case involving the interpretation and admissibility of a handwritten document intended to alter or supplement a prior will. The deceased, Mr Becroft, passed away leaving behind a will and a handwritten document which was claimed to be a codicil. The matter was before the court to determine whether the handwritten document should be admitted to probate as a codicil or whether it constituted a subsequent will. The court had to decide whether the document complied with the requirements of the Wills Act 1997, specifically sections 7 and 9, which outline the formalities necessary for the execution of a will or codicil.

The primary legal issue was whether the document in question could be admitted to probate as a codicil, given that it did not strictly adhere to the formalities required by the Wills Act. The court also had to determine if the document was testamentary in nature and whether extrinsic evidence could be used to ascertain the testator’s intention. The court considered whether the document was intended as a codicil or if it represented a subsequent will, given the absence of compliance with the formalities prescribed by the Act.

In deciding the matter, the court examined the content and context of the handwritten document, considering its testamentary character and the testator's intention. The court held that while the document did not comply with the formalities required for a codicil under the Wills Act, it was testamentary in nature. The court also found that the document could be admitted to probate as a subsequent will because it demonstrated the testator's intention to make a new testamentary disposition. The court allowed the use of extrinsic evidence to support this conclusion, confirming that the document should be admitted to probate as a will rather than a codicil.

Ultimately, the court determined that the handwritten document constituted a subsequent will rather than a codicil and ordered that it be admitted to probate accordingly. This decision allowed for the proper execution of the deceased's testamentary wishes, as reflected in the document, despite the non-compliance with the formalities required for a codicil.

Orders