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Re Curtis

Re Curtis

Case [2022] VSC 621 17 October 2022

Probate

Wills Act 1997 (Vic)

Succession Law

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IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

COMMON LAW DIVISION

TRUSTS, EQUITY AND PROBATE LIST

S PRB 2021 14624

IN THE MATTER of the estate of CARL JOHN CURTIS, deceased
APPLICATION BY:
ADAM CARL CURTIS	Plaintiff

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JUDGE:	McMillan J
WHERE HELD:	Melbourne
DATE OF HEARING:	On the papers
DATE OF ORDERS:	2 December 2021
DATE OF RULING:	17 October 2022
CASE MAY BE CITED AS:	Re Curtis
MEDIUM NEUTRAL CITATION:	[2022] VSC 621

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PROBATE – Remote execution procedure – Requirement that witness and testator clearly see each other’s signature being made – Will not executed in accordance with remote execution procedure – Will admitted to probate as informal will – Wills Act 1997 (Vic) ss 7, 8A, 8B, 8C, 8D, 9.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	KHQ Lawyers
Amici Curiae	Mr R Boaden with Mr N J Baum

HER HONOUR:

Introduction

Carl John Curtis (‘the deceased’) died on 21 June 2021, aged 76 years.

The deceased left a will dated 7 June 2021 (‘the will’ or ‘the deceased’s will’). By the will, the deceased appointed his son, Adam Carl Curtis (‘the plaintiff’), as executor of the will and trustee of his estate. The will left the residue of the deceased’s estate to the plaintiff.

By originating motion filed 2 September 2021, the plaintiff sought a grant of probate of the deceased’s will.

The deceased’s will was purportedly executed in accordance with the ‘remote execution procedure’ set out under the Wills Act 1997 (Vic) (‘the Wills Act’), in the newly introduced s 8A (‘the remote execution procedure’).

At the date of execution of the will, public health directions were in effect to address the health risk posed by the spread of COVID-19.[1] In Melbourne these directions restricted the circumstances in which persons ordinarily residing in the metropolitan area could leave their residence and visit another person’s residence. Execution of a will was not a specified reason to leave a person’s premises or to enter another person’s premises. The deceased resided in metropolitan Melbourne at the date the will was executed.[2]
[1]The Stay at Home Directions (Metropolitan Melbourne) were made on 3 June 2021 by Professor Allen Cheng, Acting Chief Health Officer, pursuant to s 200(1)(b) and (d) of the Public Health and Wellbeing Act 2008 (Vic).
[2]The Area Directions (No 10) were also made by Professor Cheng on 3 June 2021, under which ‘metropolitan Melbourne’ was defined to include 31 specified local government areas for the purposes of the Stay at Home Directions (Metropolitan Melbourne). Amongst these local government areas was the City of Whittlesea, where the deceased resided.

The plaintiff’s application was the first application made to the Court for a grant of probate in respect of a will purportedly executed in accordance with the remote execution procedure. On 30 September 2021, the Register of Probates informed the plaintiff that due to uncertainty around compliance with the remote execution procedure, the application should be determined by a Judge 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 Curtis

Details

AGLC: Re Curtis [2022] VSC 621
Case: [2022] VSC 621
Decision Date: 17 October 2022

CaseChat Overview and Summary

The case of Re Curtis was heard in the Supreme Court of Victoria. The dispute involved the validity of a will executed under a remote execution procedure, which was contested by one of the beneficiaries. The court was asked to determine whether the will complied with the statutory requirements set out in the Wills Act 1997 (Vic), specifically sections 7, 8A, 8B, 8C, 8D, and 9, and whether it could be admitted to probate as an informal will.

The primary legal issue before the court was whether the will was executed in accordance with the statutory requirements for remote execution procedures, which include the necessity that the witness and the testator clearly see each other’s signature being made. The court had to assess if the absence of this requirement rendered the will invalid or if it could still be admitted to probate as an informal will.

The court found that although the will did not strictly adhere to the statutory requirement that the witness and the testator see each other’s signature being made, the will could still be admitted to probate as an informal will. The court reasoned that despite the procedural defect, the intent of the testator was clear and the will otherwise met the general requirements for a valid informal will under the Act. Therefore, the court admitted the will to probate, recognising its validity despite the procedural shortcoming.

As a result of the court’s decision, the will was admitted to probate as an informal will, allowing the estate to be distributed in accordance with the terms set out in the document. The court’s ruling acknowledged the importance of the statutory requirements but also highlighted the flexibility in the law to accommodate wills that, while procedurally flawed, still effectively communicate the testator’s intentions.

Orders