Re Bordon

Case •

[2024] VSC 663

•

31 October 2024
IN THE SUPREME COURT OF VICTORIA Not Restricted

AT MELBOURNE
COMMON LAW DIVISION
IN ITS PROBATE JURISDICTION

S PRB 2024 14949

IN THE MATTER of the deceased estate of JUSTIN ROBERT BORDON

JULIE ROSE BORDON Plaintiff

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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:

  1. 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

  1. 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.

  1. 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 orders relevantly including the following:

1.The Plaintiff have leave to make an application for an Order pursuant to section 21(1) of the Wills Act 1997 for authority to make a Will on behalf of Justin Robert Bordon.

2.The Court authorises the Will, which is attached to this Order, to be made on behalf of Justin Robert Bordon in the terms set out therein which are approved by the Court.

3.The Will be signed by the Registrar of Probates, sealed with the seal of this Court and deposited with the Registrar under Pt 1, Division 1A of the Administration and Probate Act 1958.

  1. The 2013 Order has not been varied or revoked; it remains in force. 

  1. The will authorised to be made by the 2013 Order (the Will) appoints the plaintiff as executor of the propositus’ estate.

  1. After the propositus died on 14 February 2024, on 20 March 2024 the plaintiff through her solicitor contacted the Probate Office inquiring about obtaining a copy of the Will  for the purpose of applying for a grant of probate. 

  1. After undertaking various searches, it was determined that paragraph 3 of the 2013 Order (which required the Will to be signed by the Registrar of Probates and for it to be sealed with the seal of the Court and deposited with the Registrar) had not been complied with.

  1. On 2 April 2024, some 6 weeks after the propositus’ death, the Registrar signed and sealed the will and deposited it pursuant to s 5A of the Administration and Probate Act 1958 in accordance with paragraph 3 of the 2013 Order.

  1. On 25 July 2024, the plaintiff filed an application for probate; the application was granted by an Assistant Registrar of Probates on 2 August 2024.

  1. It would appear that there has been no judicial determination in respect of the validity of a statutory will made under the Wills Act which has been signed after the death of the person on whose behalf the will has been authorised by the Court. As a consequence, the Registrar considered the validity of the Will to be uncertain and that accordingly she was not empowered under s 12 of the Administration and Probate Act 1958 to make an order without further direction from the Court. The Registrar therefore referred the matter to the Court pursuant to s 12(2)(b) of the Administration and Probate Act 1958 for consideration of the validity of the Will and requested that the Court exercise its inherent jurisdiction to revoke the grant of probate which had been issued.

  1. On 26 August 2024, the Court as presently constituted made orders including that the grant of probate made on 2 August 2024 in respect of the Will be revoked.[1]  The Court also ordered that senior counsel be appointed amicus curiae for the purposes of filing submissions on the validity of the Will in the circumstances that have occurred.  Senior counsel duly filed submissions in respect of the matter. [2]

    [1]The Court also narrated in ‘Other matters’ that, despite an order for revocation being made, it was not the intention of the Court to prevent a further grant being made within the application and that, if a determination is made that a further order for a grant of representation should be made in relation to the Will, such grant shall have full force and effect unless a further order of the Court is made.

    [2]The plaintiff was also afforded an opportunity to file submissions, but elected not to do so.  The Court records its thanks for the pro bono assistance provided by senior counsel.

Wills Act

  1. The statutory framework for the making of statutory wills in Victoria is set out in Division 2 of Part 3 of the Wills Act entitled ‘Court authorised wills for persons who do not have testamentary capacity’. As noted below, there are minor differences between the current terms of those provisions and those which were in force when the 2013 Order was made; these differences are not relevant to the assessment of the validity of the Will.

  1. In determining the validity of the Will, the key provisions of the Act are ss 21, 25 and 30 which state as follows:[3]

    [3]Other than the underlined words in s 21(2) which appeared in the Wills Act at the time the 2013 Order was made and which do not appear in the Wills Act in its current form, these provisions were otherwise identical in their current form and as at the time the 2013 Order was made.

21 Wills for persons who do not have testamentary capacity authorised by the Court

(1) The Court may make an order authorising a will to be made in specific terms approved by the Court or revoked on behalf of a person who does not have testamentary capacity.

(2) Any person may make an application for an order under this section if the person has first obtained leave of the Court to make the application.

(3)The Court may make an order under this section on behalf of a person who is a minor and who does not have testamentary capacity, but must not make an order under this section on behalf of a person who is deceased at the time the order is made.

25 Execution and storage of wills made under an order under section 21

(1) A will which is made under an order under section 21 is not valid unless it is in writing, signed by the Registrar and sealed with the seal of the Court.

(2) The revocation of a will which is made under an order under section 21 is not valid unless it is effected by a document which is signed by the Registrar and sealed with the seal of the Court.

(3) Any will and any document to which this section applies must be deposited with the Registrar under Part 1, Division 1A of the Administration and Probate Act 1958.

(4) Despite section 5C of the Administration and Probate Act 1958, any will and any document to which this section applies, which has been deposited with the Registrar, must not be withdrawn from the deposit unless—

(a) the Court has made an order under this section revoking the will; or

(b) the person on whose behalf the will has been made has acquired or regained testamentary capacity.

(5) A failure to comply with subsection (3) does not affect the validity of the will.

30       Recognition of statutory wills

(1) A statutory will made according to the law of the place where the deceased was resident at the time of the execution of the will is deemed to be a valid will of the deceased.

(2) In this section, statutory will means a will executed under a statutory provision on behalf of a person who, at the time of the execution, lacked testamentary capacity.

  1. Two other provisions of the Wills Act may be noted:

(a) Section 21B of the Wills Act in its current form identifies the matters of which the Court must be satisfied before making an order under s 21. It states as follows:

21B Matters of which the Court must be satisfied before making an order under section 21

Before making an order under section 21, the Court must be satisfied that—

(a) the person on whose behalf the will is to be made or revoked does not have testamentary capacity; and

(b) the proposed will or revocation reflects what the intentions of the person would be likely to be, or what the intentions of the person might reasonably be expected to be, if the person had testamentary capacity; and

(c) it is reasonable in all the circumstances for the Court, by order, to authorise the making of the will for the person.

When the 2013 order was made, these provisions were contained in s 26 of the Wills Act as matters of which the Court was required to be satisfied to grant leave to apply for an order under s 21. The requirement for leave to bring such an application is no longer provided for by the Wills Act.

(b) Section 22 of the Wills Act in its current form provides as follows:[4]

[4]As at the time the 2013 Order was made, the provisions now contained in s 22 of the Wills Act were contained in ss 22 and 23 of the Wills Act.

22 Hearing an application for an order

(1)       In considering an application for an order under

section 21—

(a) the Court may have regard to any information given to the Court under section 21A; and

(b) the Court may inform itself of any other matter in any manner it sees fit; and

(c)       the Court is not bound by the rules of evidence.

(2) Nothing in subsection (1) prevents the application of Part 3.10 of the Evidence Act 2008 to an application under section 21.

(3) In making an order under section 21, the Court may make any necessary related orders or directions.

Consideration

  1. As the High Court recently re-stated in AB (pseudonym) v Independent Broad-Based Anti-Corruption Commission,[5] the interpretation of a statutory provision:[6]

… must “begin with a consideration of the text itself”,[7] that is, the text of the statute as a whole.[8] That said, ascertaining the meaning of the text requires a consideration of its context, which includes the general purpose and policy of a provision and, in particular, the mischief it is seeking to remedy.[9]

[5](2024) 98 ALJR 532.

[6]Ibid [21].

[7]Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue (2009) 239 CLR 27 (‘Alcan’) at 46 [47] per Hayne, Heydon, Crennan and Kiefel JJ. See also SAS Trustee Corporation v Miles (2018) 265 CLR 137 at 149 [20] per Kiefel CJ, Bell and Nettle JJ, 157 [41] per Gageler J, 162 [64] per Edelman J.

[8]Cooper Brookes (Wollongong) Pty Ltd v Federal Commissioner of Taxation (1981) 147 CLR 297 at 304 per Gibbs CJ, 320 per Mason and Wilson JJ (‘Cooper Brookes’).

[9]CIC Insurance Ltd v Bankstown Football Club Ltd (1997) 187 CLR 384 at 408 per Brennan CJ, Dawson, Toohey and Gummow JJ; Alcan (n 7) at 47 [47] per Hayne, Heydon, Crennan and Kiefel JJ.

  1. A consideration of the text of the Wills Act as a whole strongly supports a finding of validity in respect of the Will. By the making of the 2013 Order, the Court exercised the power conferred by s 21(1) of the Wills Act and authorised the Will to be made. Section 25(1) stipulates three express conditions for validity in respect of such a will:[10] it must be in writing, be signed by the Registrar and be sealed with the seal of the Court.  Each of these requirements has been satisfied in respect of the Will.

    [10]Additionally, by s 25(3), the will must be deposited with the Registrar under Part 1, Division 1A of the Administration and Probate Act 1958. However, non-compliance with this requirement does not affect the validity of the will: s 25(5). In any event, this condition was also satisfied in respect of the Will.

  1. Controversy has arisen because satisfaction of these requirements occurred subsequent to the propositus’ death. However, the Wills Act does not, in terms, identify any temporal frame of reference as to when a written will which has been made under s 21 is to be signed and sealed by the Registrar. More particularly, the Wills Act does not expressly impose any requirement that these acts occur before the death of the propositus. The question then is whether s 25(1) of the Wills Act, in identifying conditions of validity in respect of a will made under an order under s 21, should be read as if it contained additional words to this effect. In Taylor v Owners — Strata Plan No 11564,[11] the majority (French CJ, Crennan and Bell JJ) characterised such a question as involving ‘a judgment of matters of degree’.[12]  However, they continued:[13]

That judgment is readily answered in favour of addition or omission in the case of simple, grammatical, drafting errors which if uncorrected would defeat the object of the provision.[14] It is answered against a construction that fills ‘gaps disclosed in legislation’[15] or makes an insertion which is ‘too big, or too much at variance with the language in fact used by the legislature’.[16]

[11](2014) 253 CLR 531 (‘Taylor v Owners’).

[12]Ibid [38].

[13]Ibid.

[14]Director of Public Prosecutions (Nauru) v Fowler (1984) 154 CLR 627 at 630 per Gibbs CJ, Murphy, Wilson, Deane and Dawson JJ; Minister for Immigration and Citizenship v SZJGV (2009) 238 CLR 642 per French CJ and Bell J.

[15]Marshall v Watson (1972) 124 CLR 640 at 649 per Stephen J.

[16]Western Bank Ltd v Schindler [1977] Ch 1 at 18 per Scarman LJ cited by Lord Nicholls of Birkenhead in Inco Europe Ltd v First Choice Distribution (a firm) [2000] 1 WLR 586 at 592.

  1. The minority, (Gageler and Keane JJ) expressed a similar view about the limits of statutory construction:[17]

Statutory construction involves attribution of legal meaning to statutory text, read in context. ‘Ordinarily, that meaning (the legal meaning) will correspond with the grammatical meaning … But not always.’[18] Context sometimes favours an ungrammatical legal meaning. Ungrammatical legal meaning sometimes involves reading statutory text as containing implicit words. Implicit words are sometimes words of limitation. They are sometimes words of extension. But they are always words of explanation.[19] The constructional task remains throughout to expound the meaning of the statutory text, not to divine unexpressed legislative intention or to remedy perceived legislative inattention. Construction is not speculation, and it is not repair.

[17]Taylor v Owners (n 11), [65].

[18]Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355 at 384.

[19]For example, Cooper Brookes (n 8) at 310–11 and 319–21; MacAlister v R (1990) 169 CLR 324 at 330.

  1. The statements of principle by Gageler and Keane JJ were recently cited by the High Court in support for the proposition that the ‘province of statutory construction is the attribution of meaning to the enacted statutory text, not the remediation of perceived legislative oversight’.[20]  To similar effect in Disorganised Developments Pty Ltd v South Australia,[21] the High Court stated that the task of construction:[22]

… involves attributing legal meaning to the legislative text, read in context: expounding the meaning of the text and not seeking “to remedy perceived legislative inattention”.

[20]H Lundbeck A/S v Sandoz Pty Ltd (2022) 276 CLR 170, [63].

[21](2023) 410 ALR 508.

[22]Ibid [14], citations omitted.

  1. I do not discern any proper basis upon which it might be concluded that the absence of words in s 25(1) of the Wills Act requiring that a will be signed and sealed by the Registrar before the death of the propositus is a simple, grammatical or drafting error which, if uncorrected, would defeat the object of the provisions of the type to which the majority in Taylor v Owners referred. To the contrary, there are a number of important features of the text of Division 2 of Part 3 of the Act, and the apparent purpose of those provisions, which yield the conclusion that a construction of s 25(1) of the Wills Act as including the above additional words would be an insertion too large in scope and which would be substantially at variance with the language used by the legislature. Such a construction would in effect involve an impermissible departure from the Court’s task of expounding the legal meaning of the text of the Wills Act by speculating about the unexpressed intention of the legislature in an attempt to remedy some ‘perceived legislative inattention’.

  1. A striking aspect of the legislative provisions in issue is that, in relation to the Court’s power to make an order authorising a will to be made for a person who does not have testamentary capacity, s 21(3) of the Wills Act expressly provides that the Court ‘must not make an order under this section on behalf of a person who is deceased at the time the order is made’. It is accordingly apparent that, in establishing a framework for the making of statutory wills, Parliament specifically directed itself to the temporal framework in which that power may be exercised, and that it did so only in respect of the making of an order by the Court, and not in respect of the signing and sealing of a statutory will. The fact that Parliament made such a stipulation in respect of the making of the order by the Court indicates the importance attributed to that particular step. The absence of an equivalent stipulation in relation to the signing and sealing of the will indicates that the legislature did not attribute any particular significance as to when those necessary steps occurred relative to whether the propositus was alive or dead. While it is necessary for the Court when exercising power under s 21 to only do so while the propositus is alive, once the order is made, the absence of any temporal stipulation in respect of the requirement for the will to be signed and sealed suggests that Parliament intended that step to in substance be in the nature of an administrative action.

  1. The remedial nature of the Wills Act must also be recognised.[23]  Generally, statutory provisions of remedial legislative character ‘should be construed so as to give the fullest relief which the fair meaning of its language will allow’.[24] The remedial nature of the Wills Act comes into focus in two specific ways when considering the operation and construction of ss 21 and 25 of the Wills Act.

    [23]See Re McComb [1999] 3 VR 485.

    [24]Bull v Attorney-General (NSW) (1913) 17 CLR 370, 384 (Isaacs J). See also Mason CJ in Devenish v Jewel Food Stores Pty Ltd (1991) 172 CLR 32, 44.

  1. First, although the delay between the making of the 2013 Order and the signing and sealing of the Will was significant, in considering the proper construction of the provisions of the Wills Act, it is also instructive to consider the opposite scenario. It is not uncommon for applications for the making of a statutory will to be brought on short notice, often because a person is critically ill. One can conceive of a scenario where the Court is satisfied of all of the necessary matters referred to in s 21 and authorises a will be made, only for a propositus to die later that day before the Registrar has had an opportunity to sign the will and affix the Court seal. A scenario where, for example, the Registrar signs and seals a statutory will within minutes or hours after the propositus’s death, vividly highlights the injustice worked by a construction which involves reading into the legislation a requirement that those steps occur before the propositus’s death. It would mean that the testamentary intentions of the deceased, as found and ordered by the Court, are not able to be given effect to, effectively because of unavoidable administrative delay or clerical misstep.

  1. Secondly and relatedly, where a propositus dies shortly after the making of the will but before it is signed and sealed by the Registrar, a construction of the Wills Act as requiring the latter steps to be taken while a propositus was alive would result in an intestacy. However, in the case of the ordinary process for will-making provided for under s 7 of the Wills Act, in many circumstances s 9 will operate to avoid an intestacy where there has not been compliance with the formalities prescribed by s 7 for the making of a will by a testator. Section 9 was introduced at the same time as the provisions dealing with statutory wills in the Wills Act, but it is unable to operate in respect of statutory wills.[25]  In the second reading speech in the Legislative Council, the Minister for Small Business referred to an intestacy scenario brought on by inadvertence or non-compliance with will-making formalities as creating:

… inequitable results.  A document which for all purposes would be a will reflecting the dispositive intentions of a testator is considered invalid due to an oversight or inadvertent error by the testator or the attesting witnesses.  In such situations the deceased’s estate would be distributed as an intestacy and may benefit people whom the testator had no intention of benefitting under the terms of his or her will.

[25]Section 9(1) of the Wills Act requires the Court to be satisfied that a person intended the particular document to be his or her will. The Court could never be so satisfied in respect of a statutory will given that a propositus lacks capacity and cannot have any ‘intentions’ in respect of a document embodying their testamentary intentions. Rather, it is for the Court to decide that the document reflects what the intentions of the person would be likely to be, or what the intentions of the person might reasonably be expected to be, if they had testamentary capacity.

  1. This anomalous operation in respect of the capacity to avoid intestacy in the case of ‘ordinary’ will-making under s 7, but not in relation to statutory wills, does not arise if, consistent with the ordinary meaning of their terms, ss 21 and 25 are understood as revealing the importance attributed by Parliament to the making of the order by the Court authorising a will to be made while a propositus was alive, without the attribution of any such temporal importance to the subsequent signing and sealing of the will by the Registrar.

  1. The point is further highlighted by s 25(3) which forgives any oversight in relation to the depositing of the will with the Registrar pursuant to Part 1, Division 1A of the Administration and Probate Act 1958.  It is difficult to reconcile the self-evident ameliorative and remedial purpose of that provision with a construction whereby the signing and sealing of a will after the death of a propositus effectively invalidates the will which the Court authorised to be made and which results in an intestacy scenario obtaining with no available remedial provision.  As amicus curiae submitted, such an approach would render the statutory will regime harsh and unjust in contrast to the remedial character of the Wills Act and ordinary will-making under s 7.

  1. I am fortified in this analysis by the approach adopted by superior courts in other jurisdictions in respect of analogous provisions which, collectively, were intended to comprise Australia’s ‘uniform’ succession law.[26]

    [26]See Re Sampson [2024] VSC 351, [40]-[41].

  1. In Re Estate of Brown,[27] Gray J considered the provisions of the Wills Act 1936 (SA) in relation to statutory wills,[28] which provisions were in materially the same terms as the Wills Act. The Court had made an order authorising the making of a will for a propositus and the Registrar of Probates signed the will as required by the Act, but this occurred five days after the propositus had died. His Honour noted that, unlike the succession legislation in New South Wales and the Northern Territory, the Wills Act 1936 (SA) (as with the Wills Act 1997 (Vic)) contained no provision requiring the Registrar to sign the will upon proof that the proposed testator was alive. He concluded that, without any express or implied suggestion in the legislation to the contrary, ‘it would be odd that in order for a valid will to be created, the proposed testator would need to be alive at the time of the signing of the will by the Registrar’.[29] He continued:[30]

…The statutory will is created by the authorisation of its creation in terms approved by the Court. … I am of the view that it is the order which creates the will for the purposes of the Wills Act, not the signing of it by the Registrar. It follows that the proposed testator need only be alive at the date of the order of the Court authorising the making of a statutory will for it to be valid … .

This above construction takes into account the significant difference between a statutory will and any other will – the proposed testator does not have capacity to make the will. The authority for the will is not the proposed testator’s decision to formally execute it, but the Court’s order that it be executed in the terms annexed to that order. In this respect, the order of the Court is the substantive order for the purposes of section 7 of the Wills Act, and the matters that follow from that order are essentially mechanical. 

[27][2010] SASC 90 (‘Re Estate of Brown’).

[28]Principally s 7 of the Wills Act1936 (SA).

[29]         Re Estate of Brown (n 27), [14].

[30]Ibid [16]-[17].

  1. In Estate of Scott; re Application for probate,[31] Lindsay J dealt with a statutory will which had been approved under the Succession Act 2006 (NSW) but, because of oversight by the parties, had not been executed by the Registrar before the deceased’s death. Significantly, in addition to the same requirements for validity set out in s 25(1) of the Wills Act, s 23(2) of the Succession Act 2006 (NSW) also expressly provided that:

A will may only be signed by the Registrar if the person in relation to whom the order was made is alive.

[31][2014] NSWSC 465.

  1. Notwithstanding this express provision, after an extensive analysis and consideration of the text and purpose of the Succession Act 2006 (NSW), Lindsay J concluded ‘no legislative purpose or object would be served by denying to an order [authorising a statutory will to be made] continuing operation, subject to the ongoing control of the Court, merely because of the contingency for which s 23 of the Act provides has not occurred’.[32] His Honour continued: ‘[T]he administrative process for which s 23 provides is a servant, not the master, of the judicial process that culminates in an order [by the Court authorising the making of a will]’.[33]

    [32]Ibid [103].

    [33]Ibid [105].

  1. In summary, properly construed, the Wills Act does not contain any requirement which would operate to invalidate a statutory will signed and sealed after the death of the propositus, as long as the document so sealed and signed is in the same terms as authorised by an order of the Court made during the life of the propositus. This reflects a construction of Division 2 of Part 3 of the Wills Act in which the primary focus is on the making of an order by the Court authorising a will to be made in specific terms. It is the decision of a Justice of the Court which settles the terms of a propositus’ testamentary instrument and therefore the scheme of their testamentary disposition. Although the validity of the statutory will is dependent upon the signature of the Registrar and the affixing of the seal of the Court, properly construed, the Wills Act does not impose any temporal requirement that the will be signed and sealed before the death of the propositus.

  1. Accordingly, the Will is a valid will, notwithstanding that it was signed and sealed by the Registrar after the death of the propositus.  

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Bull v Attorney-General (NSW) [1913] HCA 60
Bull v Attorney-General (NSW) [1913] HCA 60
Re Sampson [2024] VSC 351