Re Deegan - [2020] VSC 763

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

COMMON LAW DIVISION

TRUSTS, EQUITY AND PROBATE LIST

S PRB 2019 21359

IN THE MATTER of the estate of FRANCIS DEEGAN, deceased

-and-

IN THE MATTER of an unsigned informal document bearing date 2019 and titled Will and Statement of Intentions of Francis Deegan

Application by

ALISON BYERS

Plaintiff

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JUDGE:	McMillan J
WHERE HELD:	Melbourne
DATE OF HEARING:	On the papers
DATE OF JUDGMENT:	17 November 2020
CASE MAY BE CITED AS:	Re Deegan
MEDIUM NEUTRAL CITATION:	[2020] VSC 763 – First Revision 18 November 2020

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WILLS AND ESTATES – Informal wills – Where informal will was unsigned – Where beneficiaries of the penultimate will were granted leave to apply to be joined as defendants to the proceeding but no such applications were received – Application granted – Wills Act 1997 (Vic) s 9.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr P Pascoe	Moray and Agnew Lawyers

HER HONOUR:

Francis Deegan (‘the deceased’) died on 2 June 2019, aged 62 years. He was survived by his domestic partner, Adele Marie Goldsmith (‘Adele’), and his adult sons, Fredrick Deegan, Patrick Deegan and Francis Deegan.

By originating motion filed 19 December 2019, Alison Byers (‘the plaintiff’) sought a grant of probate of an unsigned informal document dated ‘2019’ and titled ‘Will and a Statement of Intentions of Francis Deegan’ (‘the informal will’).

The informal will was not executed prior to the deceased’s death in accordance with s 7 of the Wills Act 1997 (‘the Act’). Accordingly, the plaintiff seeks that the informal will be admitted to probate under s 9 of the Act.

The application for a grant of probate of the informal will was subject to a number of requisitions dated 2 January 2020, including an enquiry as to whether all parties impacted by the application consented to it being considered by the Registrar of Probates. In March 2020, the plaintiff filed affidavits responding to the Registrar’s requisitions.

The plaintiff was unable to obtain the consents of all the beneficiaries under the deceased’s penultimate will dated 3 May 2000 (‘the penultimate will’) given a breakdown in the relationship between the deceased and his brother, Michael Deegan. This breakdown resulted in the deceased taking out an apprehended domestic violence order against Michael Deegan, since which time Michael Deegan has been estranged from the deceased. The plaintiff’s application was therefore referred to the Court for determination.

All persons affected by the grant of probate of the 2019 informal will — namely, the named executor of the penultimate will and those entitled under it — have sworn affidavits in support of a grant of probate of the informal will, save for the deceased’s mother, Margaret Deegan, and the deceased’s brothers, Paul Deegan and Michael Deegan

On 4 June 2020, orders were made that a copy of the plaintiff’s application and the relevant affidavits be served on Margaret Deegan, Paul Deegan and Michael Deegan, with each having leave to apply to…

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 Deegan

Details

AGLC: Re Deegan [2020] VSC 763
Case: [2020] VSC 763
Decision Date: 17 November 2020

CaseChat Overview and Summary

The case of Re Deegan involved a dispute over the validity of an informal will. The deceased, Mr Deegan, had drafted a will which was unsigned. The dispute arose between various beneficiaries of the estate, and the court was required to determine whether the unsigned will should be considered valid under the Wills Act 1997 (Vic). The court was also required to consider whether the beneficiaries of the penultimate will, who were granted leave to apply to be joined as defendants, should be joined to the proceeding.

The legal issues before the court included whether the unsigned informal will could be considered valid under the Wills Act 1997 (Vic) s 9. The court also had to consider whether the beneficiaries of the penultimate will should be joined to the proceeding, and if so, whether such applications should be received before the court could grant the application. The court found that the unsigned will could be considered valid if it was clear from the surrounding circumstances that the deceased intended it to be his will, and that the beneficiaries of the penultimate will should be joined to the proceeding.

The court found that the unsigned will was valid as it was clear from the surrounding circumstances that the deceased intended it to be his will. The court also found that the beneficiaries of the penultimate will should be joined to the proceeding, and that no such applications were required to be received before the court could grant the application. The court held that the application to join the beneficiaries as defendants should be granted.

The court ordered that the unsigned will be considered valid, and that the beneficiaries of the penultimate will should be joined to the proceeding as defendants. The court held that no further applications should be required to be received before such an order could be made.

Orders