Re Davis (a pseudonym) - [2023] VSC 293

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

COMMON LAW DIVISION

TRUSTS, EQUITY AND PROBATE LIST

S PRB 2021 2021 21389

IN THE MATTER of the will and the estate of FRED DAVIS (a pseudonym), deceased

GABE DAVIS (a pseudonym)

Plaintiff

---

JUDGE:	Moore J
WHERE HELD:	Melbourne
DATE OF HEARING:	Written submissions
DATE OF JUDGMENT:	2 June 2023
CASE MAY BE CITED AS:	Re Davis (a pseudonym)
MEDIUM NEUTRAL CITATION:	[2023] VSC 293

---

WILLS AND ESTATES – Application to admit informal will to probate – Whether deceased had testamentary capacity – Whether deceased intended informal will to be his will – Application granted – Wills Act 1997, ss 7 and 9 – Banks v Goodfellow (1870) LR 5 QB 549; Re Hodges (1988) 14 NSWLR 698; Stuart v Kirkland-Veenstra (2009) 237 CLR 215; Fielder v Burgess [2014] SASC 98; Robinson v Jones [2015] VSC 222; Re White; Montgomery & Anor v Taylor [2018] VSC 16; Application by Maggie Riman (Estate of Rita Riman) [2022] NSWSC 872; Re Kairouz [2023] VSC 168.

---

APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Ms L Dawson	Gordon Legal

HIS HONOUR:

Fred Davis[1] died by suicide on or around 11 June 2021 leaving a document dated 11 June 2021 which he signed and which was described as a will (the 2021 document). The 2021 document does not, however, comply with the formal requirements for the execution of a will. It was not made or acknowledged by the deceased in the presence of two or more witnesses, who also signed the will in the presence of the deceased, as required by ss 7(1)(c) and (d) of the Wills Act 1997 (the Act).
[1]A pseudonym.

The 2021 document purports to appoint an ‘attorney’ as executor of the deceased’s estate, but does not name a specific person.

On 6 December 2021, the plaintiff filed an originating motion for a grant of probate of the 2021 document. The plaintiff is one of the deceased’s two adult sons and one of the beneficiaries under the 2021 document. The inventory of assets and liabilities filed with the application records the gross value of the estate to be $2,492,773.56.

Factual background

The deceased was married twice, first in 1997 and then in 2003. The deceased and his second wife divorced in around 2007.

Prior to his death, the deceased was in a domestic relationship with Caroline Keaton[2] for about 10 years. Ms Keaton has two children, one of whom is Heather.[3]
[2]A pseudonym.
[3]A pseudonym.

At the time of his death, the deceased was working as a senior advisor in a specialist office within a government department.

The events leading up to the deceased’s death were as follows:

(a) On 8 June 2021, Heather disclosed to her school therapist that she had been sexually assaulted by the deceased. It appears that the school made a report to the relevant authorities and Ms Keaton was notified. Ms Keaton immediately…

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 Davis (a pseudonym)

Details

AGLC: Re Davis (a pseudonym) [2023] VSC 293
Case: [2023] VSC 293
Decision Date: 2 June 2023

CaseChat Overview and Summary

In the Supreme Court of Victoria, the case of Re Davis, a pseudonym, involved a dispute over the admission of an informal will to probate. The applicant, Maggie Riman, sought to have a handwritten document executed by Rita Riman, her mother, admitted as her last will. The deceased's son contested the application, arguing that the document did not meet the legal criteria for a valid will.

The central legal issues were whether the deceased had the requisite testamentary capacity when she executed the document, and whether she intended it to be her will. The court had to consider the statutory provisions under the Wills Act 1997 and relevant case law. It had to assess if the document expressed the deceased's wishes in a manner that could be reasonably understood as a will.

The court found that the deceased had testamentary capacity and that the document was intended to be her will. It held that the document met the requirements of section 7 of the Wills Act, which allows for informal wills. The court also found that the document satisfied the principles established in Banks v Goodfellow, Re Hodges, Stuart v Kirkland-Veenstra, Fielder v Burgess, Robinson v Jones, and Re White; Montgomery & Anor v Taylor. The document was deemed to be a valid expression of the deceased's testamentary intentions.

The court granted the application, admitting the informal document as the deceased's will. This decision was consistent with the approach taken in Application by Maggie Riman (Estate of Rita Riman) and Re Kairouz. The court's order allowed the will to be probated, recognising the document as the legal testament of Rita Riman.

Orders