JUDGE:	Moore J
WHERE HELD:	Melbourne
DATE OF HEARING:	Written submissions
DATE OF JUDGMENT:	31 October 2024
CASE MAY BE CITED AS:	Re Bordon
MEDIUM NEUTRAL CITATION:	[2024] VSC 663

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WILLS AND ESTATES – Statutory wills – Application by plaintiff for grant of probate of statutory will – Where Court authorised making of statutory will in respect of propositus – Whether statutory will valid notwithstanding it was signed and sealed by Registrar of Probates after death of propositus – Held will of propositus is valid – Administration and Probate Act 1958, s 12 – Wills Act 1997, ss 21, 25 and 30 – Re McComb [1999] 3 VR 485; Re Estate of Brown [2010] SASC 90; Taylor v Owners — Strata Plan No 11564 (2014) 253 CLR 531; Estate of Scott; re Application for probate [2014] NSWSC 465; H Lundbeck A/S v Sandoz Pty Ltd (2022) 276 CLR 170; Disorganised Developments Pty Ltd v South Australia (2023) 410 ALR 508; AB (pseudonym) v Independent Broad-Based Anti-Corruption Commission (2024) 98 ALJR 532.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	No appearance
Amicus Curiae	Simon Pitt SC

HIS HONOUR:

Section 21(1) of the Wills Act 1997 (the Wills Act) gives the Court power to make an order authorising a will to be made in specific terms on behalf of a person who does not have testamentary capacity. Such a will, known as a ‘statutory will’, is not valid unless it is in writing, signed by the Registrar of Probates (Registrar) and sealed with the seal of the Court: s 25(1) of the Wills Act. The issue raised in this proceeding is whether a statutory will made under s 21 of the Wills Act is valid where, although the order authorising it to be made was made while the propositus was alive, the will was signed and sealed by the Registrar after the death of the propositus. The issue arises in the circumstances set out below.

Background

On 14 May 2013, the plaintiff applied to the Court for an order authorising a will to be made under s 21 of the Wills Act in respect of her son, Justin Robert Bordon (the propositus), who was a person who lacked testamentary capacity.

In an order made on 7 June 2013 (the 2013 Order), McMillan J recorded in ‘Other matters’ her satisfaction that, pursuant to s 26 of the Wills Act, the propositus did not have testamentary capacity, that the will annexed to the order reflected the propositus’ likely intentions if he had testamentary capacity and that it was reasonable in all the circumstances for the Court to authorise the making of the will in the terms annexed to the order. The Court made…

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 Bordon

Details

AGLC: Re Bordon [2024] VSC 663
Case: [2024] VSC 663
Decision Date: 31 October 2024

CaseChat Overview and Summary

In the case of Re Bordon, the plaintiff sought a grant of probate of a statutory will made in respect of the deceased. The dispute arose due to the procedural irregularities in the creation and execution of the will. The matter was heard by the Supreme Court of Victoria. The central legal issue before the court was whether the statutory will was valid despite the fact that it was signed and sealed by the Registrar of Probates after the death of the deceased.

The court examined the relevant statutory provisions under the Administration and Probate Act 1958, s 12, and the Wills Act 1997, ss 21, 25, and 30. It considered precedents such as Re McComb, Re Estate of Brown, Taylor v Owners — Strata Plan No 11564, Estate of Scott; re Application for probate, H Lundbeck A/S v Sandoz Pty Ltd, Disorganised Developments Pty Ltd v South Australia, and AB (pseudonym) v Independent Broad-Based Anti-Corruption Commission. The court concluded that the statutory will was valid, focusing on the intent of the deceased and the authority granted to the Registrar to execute the will posthumously.

The court found that the statutory will was valid because it adhered to the legislative framework allowing for its creation under exceptional circumstances. The Registrar's authority to sign and seal the will after the deceased's death was within the scope of the legal provisions. Consequently, the court granted the plaintiff's application for the probate of the statutory will.

Orders