Re Finlay
[2022] VSC 215
•3 May 2022
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
COMMON LAW DIVISION
TRUSTS, EQUITY AND PROBATE LIST
S PRB 2019 05599
In the matter of the two Wills and the Estate of AUDREY VERA FINLAY (the deceased)
| RICHARD LODGE HORSEMAN (as Syndic of MÉDECINS SANS FRONTIÈRES AUSTRALIA LTD) | Plaintiff |
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JUDGE: | FORBES J |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 2 May 2022 |
DATE OF JUDGMENT: | 3 May 2022 |
CASE MAY BE CITED AS: | Re Finlay |
MEDIUM NEUTRAL CITATION: | [2022] VSC 215 |
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PROBATE – Application to admit informal documents to probate – Two copies of hand written document – Signed by testator – Not witnessed in accordance with legislative requirement – Wills Act 1997 (Vic), ss7, 9 – Whether deceased intended the documents to be her will – Testamentary capacity demonstrated at the time of death – Informal documents intended to operate as wills – Informal documents are to be admitted to probate.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr M McKenzie | Prior Law |
HER HONOUR:
Audrey Vera Finlay (the deceased) was found unconscious in her home on 30 January 2018. She was located there by an ambulance crew because she had failed to respond to a MePACS alarm at her home. The deceased was taken to Box Hill Hospital having suffered a major stroke and died on 3 February 2018. The attending paramedic found a handwritten document described as a Will and dated 18 December 2017 near where she lay at her home (Will B). A similar but not identical handwritten document also described as a Will and also dated 18 December 2017 (Will C) was posted to Mr Horseman(the plaintiff), the solicitor she had retained to prepare her will. It was received by him on 17 January 2018.
The plaintiff makes this application for letters of administration with Will B and/or Will C attached. Both Will B and Will C (collectively, the informal wills) are signed by the deceased but not witnessed. They are therefore not in accordance with section 7 of the Wills Act (Vic) 1997 (Wills Act) as neither document has been executed in the presence of two or more witnesses. Section 9 of the Wills Act permits this Court to dispense with the requirements for execution and admit a document to probate as the will of the deceased where the requirements of that section are met. To rely on section 9, the Court must be satisfied of three things: that there is a document; that the document expresses the testamentary intent of the deceased; and that the deceased intended that document, which expresses testamentary intent, to be her will.
The deceased was unmarried and had no children. She had three siblings, two of whom are alive. Her elder sister who predeceased Miss Finlay has five children. In the event of the deceased dying intestate, these family members would inherit.
The informal wills do not appoint an executor. They direct that her home in Croydon and another property in Park Orchards be sold, that her animals be euthanised as they would not cope without her care, and made provision for her funeral and burial. The informal wills leave belongings to the Salvation Army and the residue of the estate to Médecins Sans Frontières. The informal wills direct that no assets of the estate are to go to her family, who have not spoken to her for twenty years.
On 22 February 2019, Médecins Sans Frontières (Australia) Ltd (MSF), as beneficiary of the residual estate, has appointed the plaintiff as its syndic. I have before me the Deed of Appointment as Syndic, I have a consent by MSF dispensing with the Surety Guarantee required by law which consent has been given by Edwin Tucker a director of MSF on 22 February 2022. Shane Condon, also a director of MSF, has sworn an affidavit verifying the Deed of Appointment for the plaintiff to act as its syndic and that Mr Tucker understood that by consenting to dispense with the protection that would be accorded to MSF it would be relying on the integrity of the administrator for the due execution of the estate of the deceased.
The matter has come before me as the value of the estate exceeds $1,000,000 and some but not all the family entitled to a share of the estate if there is an intestacy have provided consent to the Registrar of Probate exercising the powers of the Court pursuant to s 9 of the Wills Act.
The deceased had previously made wills. The records of Ryan, Verhoven & Horseman Solicitors shows that they held a Will dated 12 December 1988. The deed record is signed by the deceased indicating that she collected the will.[1]
[1]Plaintiff, ‘Affidavit of Richard Horseman’, Affidavit in The two Wills and Estate of Audrey Vera Finlay S PRB 2019 05599, 7 July 2021.
The deceased is believed to have executed a further will on 6 October 2013 (2013 will). A friend of the deceased, Delwynne Hughes, transcribed a copy of that will at the request of the deceased. Ms Hughes did not know the reason for the request. A copy of the handwritten transcription was provided to the plaintiff on 24 January 2019. The original handwritten transcription was provided to the plaintiff’s solicitors on 26 May 2021. The transcription is unsigned but has written the names of the deceased and the witnesses.
The 2013 will appoints Delwynne Hughes as executor and provides a sum of money to Hughes and another friend of the deceased. It gifts $20,000 to her animals or Blue Cross if that organisation takes care of the animals. The deceased’s belongings are given to the Salvation Army and the residue to ‘Medecine without Frontier’. As with the informal wills, there is a direction that she does not want family to receive any possessions as they have not contacted her for over 20 years. The original 2013 will cannot be located. The plaintiff deposes that Delwynne Hughes is prepared to sign a consent in relation to the application.[2] At trial, the plaintiff’s counsel confirmed that no further consent is required from Hughes in relation to the application on the basis that the 2013 will has been revoked by the informal wills .
[2]Plaintiff, ‘Further Affidavit of Richard Horseman’, Affidavit in The matter of the two Wills and Estate of Audrey Vera Finlay S PRB 2019 05599, 7 July 2021, [5].
The plaintiff had a number of discussions with the deceased regarding instructions for her will. On 13 December 2017, the deceased had a telephone appointment with the plaintiff to provide instructions for the disposition of her estate. The plaintiff obtained those instructions and recorded them on a template ‘Will Instruction Sheet’ at that time.[3] The deceased’s instructions were that she was considering leaving the contents of her houses to the Salvation Army and her residuary estate to Médecins Sans Frontières Australia. At the end of the discussion, the deceased indicated that she would write to give instructions for her will. She did so and that letter, undated but received by the plaintiff on 17 January 2018, included three documents. A one page letter that said ‘Mr Horseman I have written down what I can, Would you please let me know what else I need to do. Thanking you’ and signed by the deceased. It then followed a page that set out details of assets and liabilities and funeral and burial details. The third document included with this letter was the original of Will B.[4]
[3]Plaintiff, ‘Further Affidavit of Richard Horseman’, Affidavit in The matter of the two Wills and Estate of Audrey Vera Finlay S PRB 2019 05599, 26 March 2019, exhibit F.
[4]Plaintiff, ‘Further Affidavit of Richard Horseman’, Affidavit in The matter of the two Wills and Estate of Audrey Vera Finlay S PRB 2019 05599, 26 March 2019, exhibit G.
The plaintiff prepared a will in accordance with those instructions and sent a copy to the deceased by letter of 19 January 2018. That document followed the instructions of the deceased save for the identity of the executor. The plaintiff provided for State Trustees Ltd to be the executor, believing that they would be better suited for the role (due to the plaintiff’s legal practice being in Morwell and his residence in Warragul).
On 23 January 2018, the deceased telephoned the plaintiff to say that the draft will that she was anticipating to receive had not yet arrived. In that conversation, the plaintiff advised of his change in the document to appoint the State Trustees Ltd as executor. The deceased did not accept this advice and instructed that she desired the plaintiff to act as executor. He agreed to do so.
On 30 January 2018, the plaintiff received notification from Box Hill Hospital that the deceased had been admitted. He was told that he was listed as contact person on the Aged Care Assessment that had been prepared. He was also informed of Will C which had been found nearby in the home by the ambulance officer. The original of Will C was later posted to the plaintiff by Eastern Health.
Subsequently, on 3 February 2018, the plaintiff prepared a further will changing the identity of executor in accordance with the deceased’s instructions. Also on 3 February, he was informed by Box Hill Hospital that the deceased had died that day.
In substance, Will B and Will C are the same, but one is not a copy of the other. There are small variations in wording. Both begin ‘This is the last will of Audrey Vera Finlay’. In Will B, MSF is described as:
Doctors
Medecine without Frontiers
In Will C, it is described as:
Doctors
Frontiers without Border
None of the variations demonstrate any inconsistency with regard to testamentary intent.
I am satisfied that the various descriptors are all in fact references to Médecins Sans Frontières, sometimes referred to by its English translation ‘Doctors without Borders’; the Australian branch of which is Médecins Sans Frontières Australia Ltd.
It is clear that the informal wills record the deceased’s testamentary intent. Other evidence confirms this. In particular, the instructions to the plaintiff on 13 December 2017 and the conversation they had on 23 January 2018. I would infer that by sending Will B to her solicitor, the deceased was confirming her testamentary intent in accordance with that document.
The will prepared on 3 February 2018 reflects the testamentary intent of both informal wills.
Further, at some point subsequent to the conversation between the deceased and the plaintiff on 23 February 2018, the will sent on 19 January 2018 was received by the deceased. After her death, the plaintiff found that letter and accompanying will in the deceased’s home. It had handwritten comments on it.[5] Those comments confirm that she did not want State Trustees Limited to be executor. It also made clear that she intended the houses be sold and the proceeds (after expenses) were to be given to MSF. She made clear that the real property itself was not to pass to MSF. Those notes also made reference to the 2013 will held by Delwynne Hughes.
[5]Plaintiff, ‘Further Affidavit of Richard Horseman’, Affidavit in The matter of the two Wills and Estate of Audrey Vera Finlay S PRB 2019 05599, 26 March 2019, exhibit M.
As to whether the informal wills or either of them were intended to operate as a will, it might be argued that they are characterised as instructions to her solicitor for a will. However, I do not consider that this would be an accurate description. The letter received 17 January 2018 provided both a single page comprising instructions for a will and a document describing itself as a will that essentially and with formality repeated that information. Clearly the deceased had more in mind by sending Will B to her solicitor than simply intending it to be instructions.
Further, it is clear that the plaintiff wrote out two versions or copies of an informal will – delivering one to the safekeeping of the person she wished to be the executor (as she had consigned a transcribed copy to Delwynne Hughes in 2013) and keeping a copy with her. Both are dated only a matter of days after the initial instructions for a will were given.
In Fast v Rockman,[6] a formal will was prepared in accordance with instructions but remained unsigned and unwitnessed on death. Habersberger J, on the question of whether the document was intended to operate as a will, said:
[117] …This was not a case where the evidence raised doubts about whether Mr Rockman wanted to think further about dispositive clauses of his will or where the evidence did not disclose any act or words by the deceased “adopting” the document as his intended will,… This was also not a case where Mr Rockman, armed with the awareness that a document must be executed in accordance with legislative requirements to have operative effect as a will, had exhibited reluctance to do so when given an opportunity to sign the document and, therefore, to implement his intention of doing so. Death intervened before he could do so.[7]
[6][2013] VSC 18.
[7]Ibid [117] (Habersberger J).
I am satisfied that the deceased intended the handwritten and signed documents to operate as her will until such time as she could formally execute a will in those same terms. She had expressed her testamentary intent in those documents in concluded terms consistent with other contemporaneous (and in some cases longstanding) expression of her wishes. I am satisfied that her stroke and its aftermath prevented her from executing a formal will in accordance with her concluded testamentary intentions.
Finally, I am satisfied that by her signed documents, Will B and Will C, she intended to revoke her earlier wills including if necessary the 2013 will. For completeness, I am also satisfied that the deceased had testamentary capacity at the time she wrote the informal wills. Her general practitioner, although not having seen her for some time, deposed to the deceased having full testamentary capacity on 10 November 2017 when last seen. There is nothing in the exchange between the plaintiff and the deceased in the course of giving instructions that demonstrated the deceased lacked testamentary capacity. To the contrary, she was clear and firm in her wishes.
It is impossible to tell whether Will B or Will C was written later in time. Given they are dated the same day, in all probability they were written contemporaneously to each other. To the extent that there are variations in the wording, it seems prudent to admit both to probate (subject to any requirements of the Registrar of Probate) in the event that there is anything of significance in those variations.
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