Re Deegan
[2020] VSC 763
•17 November 2020
| 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 be joined as defendants to the proceeding. No applications were received as a consequence of these orders.
The informal will is an unexecuted, clean copy of typed documents drawn by Mr Phillip Grundy, solicitor and partner of Moray & Agnew Lawyers. It consists of the following four documents:
(a) a front page, numbered 1, which contains the words ‘DATED 2019’, under which appear the words ‘Will and Statement of Intentions of Francis Deegan’;
(b) a will, containing pages numbered 2 to 13 inclusive (‘the will document’);
(c) a document headed ‘Statement of Intentions’, containing pages numbered 14 to 16 inclusive (‘the statement of intentions’); and
(d) a two-page document headed ‘Further Declaration of Wishes of Francis Deegan’, which contains on its second page an execution clause in the same format as the execution clause on page 13 of the will document (‘the further declaration of wishes’).
In written submissions, the plaintiff amended the application by seeking only a grant of probate of the will document, as it contains the only dispositive parts of the four documents.
The will document contains 11 clauses and a schedule containing testamentary trusts terms. Clause 1 revokes all previous wills and testamentary acts while clause 2 appoints the plaintiff as executor and trustee. After payment of a number of gifts, clause 4 directs the executor to divide the net residuary estate into three equal shares and to hold each one-third share on trust in a trust fund, in effect, on the terms of the Testamentary Trust Schedule, with each son as a specified beneficiary of his own trust.
The statement of intentions sets out the deceased’s wishes in relation to the appropriation of assets and liabilities on his death in respect of eight family trusts bearing the deceased’s name. Broadly speaking, those wishes are to bring the disposition of Frank’s non-estate assets into line with the disposition of his net residuary estate in favour of the three sons equally.
The further declaration of wishes is a statement of the deceased’s wishes in relation to the administration of his will and testamentary trusts.
Background to the creation of the informal will
By early 2017, the deceased’s penultimate will was inappropriate for his then business and personal circumstances. The deceased’s penultimate will was executed on 3 May 2000, shortly after the dissolution of his marriage to Heather Jill Deegan. At that time, the deceased’s three sons were aged 11, 10 and 8 years respectively. Under that will, the deceased’s sons each received 20 per cent of the net residuary estate. The penultimate will benefited the deceased’s mother, father and three brothers. However, by about 2008, the deceased’s relationship with his brother had broken down. By 2012, the deceased’s father had died and, by late 2015, the deceased’s brother Kevin had died. By 2017, the deceased’s sons were aged in their late and mid-twenties and had assumed important roles in the deceased’s interests in his hotel business. The penultimate will also made no provision for Adele, who had been the deceased’s partner since the mid-2000s.
In early 2017, the deceased’s accountant, Mr Tim Stillwell, advised the deceased that he should consider having a will and memorandum of wishes that was more relevant to his circumstances. Mr Stillwell then caused Mr Grundy to be retained for the purposes of drafting a new will for the deceased. Thereafter, Mr Grundy prepared a first draft of a new will and a statement of intentions for the deceased. On 18 May 2017, the deceased met with Mr Grundy and Mr Stillwell and provided instructions to them.
On 12 July 2017, a second draft of the will and statement of intentions was prepared, together with an executive summary. Between 12 July 2017 and April 2018, there were further communications between Mr Grundy, Mr Stillwell and the deceased relating to possible estate assets and aspects of the deceased’s estate planning. The communications resulted in the deceased obtaining advice from counsel in relation to the deceased’s wish that, upon his death, his three sons receive the majority of the assets of his estate, subject to Adele receiving reasonable and fair provision.
The deceased provided further instructions, which led to a third draft being prepared. The third draft included an additional document titled ‘Further Declaration of Wishes of Frank Deegan’. On 1 November 2018, the deceased met with Mr Stillwell to discuss the third draft and provide further instructions. On 29 November 2018, the deceased’s further instructions were emailed to Mr Grundy, who prepared a fourth draft. In February 2019, the deceased received a hard copy of the fourth draft of the will. This was the final draft of the will and included the will document, the statement of intentions and the further declaration of wishes.
On 16 April 2019, at a meeting between the deceased, his sons and Mr Stillwell, the deceased’s testamentary affairs were discussed and the deceased was provided with a clear copy of the fourth draft of the will for signing. At the meeting Mr Stillwell said to the deceased words to the effect of: ‘If you could get that will signed soon that would be good.’ The deceased replied with words to the effect of: ‘I’ll do it. I just want to tell Adele about it first.’ Corroboration of this conversation was provided by Mr Stillwell’s associate, Ms Erin Boyce, and the deceased’s sons, all of whom were at the meeting.
The meeting on 16 April 2019 was the culmination of a lengthy process of the deceased giving and refining his instructions for his will between 2017 and 2019. Throughout this period, the deceased refined his instruction as to the disposition of his estate assets and his wishes in respect of his non-estate assets. In doing so, he was aware that his three sons and long-term partner were persons who would reasonably have a claim on his estate. The informal will is the culmination of the deceased’s will-making endeavours.
Adele deposed that, in late April 2019, the deceased told her that a will had been drafted for him. She also deposed that she had further discussions with the deceased shortly before his death that he must get onto signing the will.
Testamentary capacity
Two of the deceased’s sons, Patrick and Fredrick, and the deceased’s partner, Adele, provided lay evidence that the deceased was mentally sound, alert, cognisant and able to make sound business and personal decisions in the period from February 2017 until late May 2019, shortly prior to his death.
Expert medical evidence was also filed in respect of the deceased’s testamentary capacity. The deceased’s treating general practitioner, Dr Kerry Dyer, deposed as to his opinion that the deceased had testamentary capacity in or about mid-April 2019 until his heart attack on 26 May 2019. The deceased’s treating nephrologist, Professor Peter Kerr, deposed as to his opinion that the deceased had testamentary capacity at the time of his last consultation with the deceased on 28 February 2019.
Applicable principles
Section 9 of the Act empowers the Court to dispense with the requirements for execution that are set out in s 7 of the Act. Three criteria must be established for the Court to admit a document to probate in accordance with s 9:
(a) there must be a ‘document’;
(b) the document must express or record the testamentary intentions of the deceased; and
(a) the document must have been intended by the deceased, without any alterations, to be her or his last will.[1]
[1]Re Masters; Hill v Plummer (1994) 33 NSWLR 446, 449 (Kirby P), 455 (Mahoney JA), 466 (Priestley JA); Equity Trustees Ltd v Levin [2004] VSC 203, [14] (Whelan J); Fast v Rockman [2013] VSC 18, [46] (Habersberger J); Re Ray [2020] VSC 699, [103] (McMillan J).
An informal will does not benefit from the same rebuttable presumptions that apply to duly executed wills.[2] As such, the onus is on the propounder to satisfy the Court that the deceased had testamentary capacity.[3]
[2]Ackerley v Felton [2012] NSWSC 1468, [30] (Young AJ); Fielder v Burgess [2014] SASC 98, [25] (Kourakis CJ); Jageurs v Downing [2015] VSC 432, [19] (McMillan J); Re Kelsall [2016] VSC 724, [22] (McMillan J). See Veall v Veall (2015) 46 VR 123, 174–5 [168]–[171] (Santamaria JA), regarding the usual presumptions.
[3]Ibid. See also Re Estate of Wai Fun Chan, deceased [2015] NSWSC 1107, [18]–[24] (Lindsay J).
The plaintiff must satisfy the Court of these requirements on the balance of probabilities, in accordance with the principles set out in Briginshaw v Briginshaw.[4]
Consideration
[4](1938) 60 CLR 336.
The will document is clearly a ‘document’ for the purposes of the relevant test.
For an informal will to be admitted to probate, the fact that the document has not been signed by the deceased is not fatal to the application.[5] Evidence of conduct or words by which the deceased approved, adopted or authenticated the document is admissible to prove that he intended the document to be his will. The deceased expressed that he was ‘fine’ with the fourth draft of the will, which was the result of the lengthy process of him giving and refining his instructions for his will. By the deceased’s words of affirmation, his stated and restated intention to sign the document after speaking with Adele, and his subsequent silence as to any further amendment, the evidence establishes on the balance of probabilities that the will document expresses the testamentary intentions of the deceased and that the deceased intended it to operate as his will upon his death. The will document was fixed and final and was not in any way conditional upon Adele’s assent.
[5]See generally, eg, Re Ray (n 1).
The lay and expert evidence supports the conclusion that the deceased possessed testamentary capacity during the time the will was drafted and at the meeting on 16 April 2019.
Orders
The Court orders as follows:
(a) Subject to any further requirements of the Registrar of Probates, pursuant to s 9(1) of the Wills Act 1997, the informal will of Francis Deegan adopted between 16 April 2019 and 2 June 2019, comprising pages 2–13 inclusive of the document dated 2019 and headed ‘Will and Statement of Intentions of Francis Deegan’ and being the document exhibited as exhibit B to the affidavit of Alison Byers sworn 18 December 2019, be admitted to probate.
(b) The plaintiff’s costs of this application be paid out of the estate of the deceased on the indemnity basis.
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