JUDGE:	McMillan J
WHERE HELD:	Melbourne
DATE OF HEARING:	24 February 2020
DATE OF JUDGMENT:	9 April 2020
CASE MAY BE CITED AS:	Re Besanko
MEDIUM NEUTRAL CITATION:	[2020] VSC 170

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WILLS AND ESTATES – Where plaintiff seeks a grant of representation of a video recording of the deceased – Whether video recording reflects deceased’s testamentary intentions – Whether deceased intended video recording to be her will – Whether deceased had testamentary capacity at time of video recording – Application dismissed – Wills Act 1997 (Vic) s 9 – Banks v Goodfellow (1870) LR 5 QB 549; Re Application of Brown; Estate of Springfield (1991) 23 NSWLR 535; Equity Trustees v Levin [2004] VSC 203; Re Estate of Brock; Chambers v Dowker [2007] VSC 415; Fast v Rockman [2013] VSC 18; Re Serar [2019] VSC 139.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr W Gillies
For the Defendant	Mr J Rizzi	Pearce Webster Dugdales

HER HONOUR:

Constance Besanko died on 26 February 2014. She was survived by her three children: Robert Besanko (‘Robert’), Mandy Dorothy Besanko-Hoppen (‘Mandy’) and Joanne Fiebiger (‘Joanne’).

Probate of the deceased’s last formal will dated 26 November 1986 (the ‘1986 will’) was granted to Mandy on 18 November 2015, with leave to Robert to come in and prove the will at any time.

According to the inventory filed in the application for probate of the 1986 will, the deceased’s estate was valued at approximately $1,810,000. The principal asset of the estate, a property at 4 Bates Street, Malvern East (‘the Bates Street property’), was valued at $1,800,000.

Pursuant to the 1986 will, the deceased’s estate was divided as follows:

(a) a gift of $100,000 was left to Joanne;

(b) the deceased’s personal chattels, as defined in the Administration and Probate Act 1958, were left to Robert, Mandy and Joanne in equal shares; and

(c) after payment of funeral and testamentary expenses, the residue of the estate was divided between Robert and Mandy as tenants in common in equal shares.

Robert’s application

By originating motion filed 20 December 2019, Robert seeks probate of a video recording of the deceased speaking to him on the evening of 8 January 2014 (‘the video will’), pursuant to s 9 of the Wills Act 1997 (‘the Act’).

Robert contends that the terms of the video will appoint him as sole executor of the deceased’s estate and confer on him a life interest, alternatively, a right of residence, in the Bates Street property. Robert’s counsel accepted that the current liabilities of…

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 Besanko

Details

AGLC: Re Besanko [2020] VSC 170
Case: [2020] VSC 170
Decision Date: 9 April 2020

CaseChat Overview and Summary

In the matter of Re Besanko, the plaintiff, a potential beneficiary under a will, sought a grant of representation of a video recording made by the deceased. The dispute centred on whether the video recording could be considered a valid will and whether it accurately reflected the deceased's testamentary intentions. The court was tasked with determining if the deceased intended the video recording to serve as her will, and if she had testamentary capacity at the time of recording.

The court had to resolve several legal issues, including whether the video recording met the statutory requirements for a valid will under the Wills Act 1997 (Vic). It also considered the case law precedents that outline the criteria for testamentary capacity and the nature of a valid will. The court examined if the video recording met the legal standards and if it could be accepted as the deceased's will, considering the authorities such as Banks v Goodfellow (1870) LR 5 QB 549, Re Application of Brown; Estate of Springfield (1991) 23 NSWLR 535, and Equity Trustees v Levin [2004] VSC 203.

The court found that the video recording did not reflect the deceased's testamentary intentions and did not meet the requirements of a valid will under the Wills Act 1997 (Vic) s 9. It held that the deceased did not intend the video to be her will, and therefore, the application was dismissed. The court relied on the principles established in Re Estate of Brock; Chambers v Dowker [2007] VSC 415 and Fast v Rockman [2013] VSC 18, which emphasised the need for clear testamentary intent and capacity. The court concluded that the video recording did not satisfy these criteria, leading to the dismissal of the application.

The court ordered that the application for a grant of representation of the video recording as a will be dismissed. The court also made no order as to costs.

Orders