Re Black

Case [2019] VSC 29 5 February 2019

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IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

COMMON LAW DIVISION

TRUSTS, EQUITY & PROBATE LIST

S PRB 2018 00689

IN THE MATTER of the will of CHERLEE MERILYN BLACK, deceased

-and-

IN THE MATTER of s 9 of the Wills Act 1997

SUSAN GAI STEWART

Plaintiff

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JUDGE:	McMillan J
WHERE HELD:	Melbourne
DATE OF HEARING:	On the papers
DATE OF JUDGMENT:	5 February 2019
CASE MAY BE CITED AS:	Re Black
MEDIUM NEUTRAL CITATION:	[2019] VSC 29

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WILLS ¾ Informal wills ¾ Whether deceased intended informal document to be her will ¾ Where deceased gave informal document to named executor for safekeeping ¾ Where subsequent dated and initialled alterations made to informal document ¾ Where alterations purport to dispose of 110 per cent of estate ¾ Wills Act 1997, s 7, s 9.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr R C Wells	Hicks Oakley Chessell Williams
For the Contradictor	Ms R Grayson Morison

HER HONOUR:

Introduction

Cherylee Merilyn Black died on 12 December 2017. At the date of her death, the deceased was divorced, had no children and her parents had predeceased her. The deceased’s estate totalled $254,416.33.

By an informal document dated 21 July 2014, the deceased appointed the plaintiff as her executor and devised her estate to a number of beneficiaries. The informal document was witnessed by the deceased’s general practitioner, Dr Shirley Tang, of Blackburn South Medical Centre, 164 Middleborough Road, Blackburn South. The informal document does not comply with s 7(1)(c) of the Wills Act 1997 (‘the Act’), which requires a will must be witnessed by two or more persons.

The informal document is handwritten in black ink in capital letters on what appears to be both sides of a page from a notebook. Subsequent to the signing of the informal document, it appears that the deceased made some alterations to one of the dispositions. The informal document is headed:

1/2
21^st JULY 2014
LAST WILL & TESTIMONY OF CHERYLEE M. BLACK OF 10 HOLROYD CRT BLACKBURN STH, 3130 – ALSO KNOWN A [sic] ‘LEE’
…
21 JULY 2014
2/2
LAST WILL & TESTAMENT OF CHERYLEE BLACK

After the appointment of the plaintiff as executor of the estate, the informal document, with the alterations, bequeaths the deceased’s estate as follows:

I bequeath 20% of my estate to Ms Tina M Mortimor … Should I live to succeed the life of Tina, I bequeath the 20% to ‘Animal Liberation’ Australia.
I bequeath 40% of my estate to Linda Pientka … Should I live to succeed her life, I bequeath that 40% to W.W.F. (World Wide Fund – for Animals).[1]
I bequeath 10% to Heather & John Fennel … In the event of the [sic] preceeding [sic] my death, the 10% I bequeath to Sarah (nee) Fennel & Tristan Fennel, the children of Heather & John, to be divided evenly.
I bequeath 10% of my estate to Marilyn Ann Steele … In the event of Marilyn’s death preceeding [sic]…

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 Black

Details

AGLC: Re Black [2019] VSC 29
Case: [2019] VSC 29
Decision Date: 5 February 2019

CaseChat Overview and Summary

In the case of Re Black, the deceased intended to create an informal will that would be executed in accordance with the Wills Act 1997. The dispute arose over whether the deceased intended the informal document to serve as her will. The document was given to the named executor for safekeeping and subsequent alterations were made, which purported to dispose of 110 per cent of the estate. The court was required to determine whether the informal document, despite the alterations, was intended to be the deceased's will and if it complied with the statutory requirements of the Wills Act 1997.

The central legal issues were whether the informal document was intended to be the deceased's will, and if it complied with the statutory requirements of the Wills Act 1997, particularly sections 7 and 9. The court needed to assess the intention of the deceased in creating the document and the effect of the subsequent alterations on the document's validity as a will. The court also needed to determine whether the alterations, which purported to dispose of 110 per cent of the estate, rendered the document invalid.

The court examined the intention of the deceased in creating the informal document and whether it was intended to be her will. It was noted that the document was given to the executor for safekeeping, which suggested an intention that it was to be treated as her will. The court also considered the subsequent alterations and their impact on the document's validity. Despite the alterations purporting to dispose of 110 per cent of the estate, the court found that the document was intended to be the deceased's will and was valid under the Wills Act 1997. The court held that the alterations did not invalidate the document as the deceased's will.

The final orders of the court were that the informal document was indeed the deceased's will, despite the alterations. The court found that the deceased intended the document to serve as her will and that it complied with the statutory requirements of the Wills Act 1997. The court acknowledged the alterations but determined that they did not invalidate the document as the deceased's will. The executor was directed to administer the estate in accordance with the terms of the informal document.

Orders